CRTC Sued a Sixth Time Over Online Streaming Act

A university professor has become the latest party to file a lawsuit against the CRTC over the Online Streaming Act.

Throughout the Bill C-11 debate, one of the things that was long warned about was the fact that the legislation would be an absolute magnet for litigation. Indeed, at different points of the debate, I noted how passage of the legislation is the easy part. Surviving court challenges and pressure from the US among other things would be the hard part. Regardless, these warnings were met with shrugs of indifference from both the lobbyists and lawmakers pushing this legislation. So, they passed the bill, fulfilling the “fuck around” part of FAFO.

Ever since, it’s been a constant stream of “find out”. There’s been considerable pressure from the US to rescind the Act. While these warnings and letters were largely ignored by the lawmakers and lobbyists, those lobbyists are now realizing that they can no longer ignore the pressure from the Americans and are now in freak out mode. Us experts have long warned that this would happen and, well, now it’s happening.

Another angle (which would partly explain why the CRTC implementation process has taken so long to move through the implementation process in the first place) is the fact that the CRTC is receiving an absolute flood of lawsuits at this point in time. This is, again, something people like us warned would happen, but were ignored by lawmakers anyway.

Since the passage, my attitude on this front is basically that I’ll be over here just counting the lawsuits that I find. That’s exactly what I ended up doing. Yup, one… two… three… four… five! Five lawsuits, ah ah ah.

Today, I found out that the CRTC is now facing its, at least, sixth lawsuit over the Online Streaming Act. This time, it’s not an organization, but rather, coming from an individual. That individual is John Schoales, an Adjunct Professor at the School of Creative Industries at Toronto Metropolitan University. The lawsuit in question can be found here: Part 1 (PDF) and Part 2 (PDF). The reason for this lawsuit can be found in part 1 which reads as follows (transcribed by me):

The grounds for the motion are:
1. The Federal Court of Appeal may grant leave to appeal under Section 31(2) of the Broadcasting Act.
2. The definition of ‘Canadian’ used by the Commission is contrary to the Canadian Human Rights Act that prohibits discrimination based on race or national origin. It is also notable that the human rights codes of all provinces prohibit discrimination based on race and on place, ethnic, or social origin; four prohibit discrimination based on nationality; and one prohibits discrimination based on citizenship.
3. While the Commission’s definition of ‘Canadian’ does not explicitly discriminate against specific national origins or races, the definition is consistent with the Canadian Human Rights Commission’s description of systemic bias that effectively discriminates against people whose origin is not Canada and who are racialized.
4. Systemic and cultural barriers to the immigration of audiovisual industry workers and other culture sector workers are contrary to the objective of the Immigration and Refugee Protection Act to permit Canada to pursue the maximum social, cultural and economic benefits of immigration.
5. As the Federal Court notes in its public documents, the proceeding for judicial review is a complicated process. The focus of this application is people who are generally excluded from relevant processes and regulations and may not have the same means to engage in the process as experienced or well-resourced parties. It is requested that any necessary extensions be granted to leave to appeal. It may also be relevant to consider that key information on whether expert legal advice was sought in the CRTC decision was not provided until several weeks after the decision was released. It may be considered relevant that this application concerns a matter of public interest and presumably an interest from all parties in whether the CRTC decision is in potential violation of the Human Rights Act.

Indeed, one of the longstanding criticisms of the process is the fact that established media entities are very easily able to navigate the process of certifying something as “Canadian” whereas someone, say, creating a YouTube channel, would have a significantly harder time even making it through the process. While this may not be as legally convincing when it comes to traditional media outlets such as a TV broadcasting station, it would certainly be very different for the internet where anyone can upload anything.

After all, the traditional media outlets have long sought to try and push their content above everyone else on pretty much any platform by effectively cheating the algorithm. Even back in the Bill C-10 days, this is something I have long criticized. Further, even when they basically acquired a cheat code to have their content pushed to all users through the algorithm, it has long been unconvincing that this would even work out even for the established media.

So, for instance, if your into car mechanic video’s, are you really going to be all that thrilled that clips of Family Feud Canada are appearing in your feed for no reason? If you aren’t that interested in that content, chances are, you aren’t. As a result, your click through rate (often referred to as “CTR”) will plummet, then, on top of it all, the people that do click on this are going to react to it by saying “WTF? Why is YouTube recommending me this?” and hit the downvote button. This along with flags of ‘don’t recommend’ all over the place. Essentially, they are going to get hit with review bombing because the content is not being sent to the audience that would be receptive to such content.

The punchline to this is the fact that the lobbyists pushing this legislation in the first place have seen that criticism. Their response? “Well, that’s YouTube’s problem, not ours.” That seriously is how oblivious they are to how the internet works. You really can’t get more clueless than that. In their minds, they incorrectly believe that it’s the platforms that are holding them back and it’s up to the government to force the platforms to showcase their content to everyone. Yeah, same mentality as “I want my website to appear at the top on every Google search result for $20”. The internet doesn’t work that way.

This lawsuit nicely highlights the human rights problem. It is a system that is designed to benefit the legacy media companies at the expense of everyone else including those trying to innovate and create content that audiences actually want.

As this lawsuit also points out, Canada has long been a nation that has a wide cultural fabric. People come into this country from a huge variety of cultural backgrounds. As a result, they are going to have a much tougher time navigating the “Cancon” (Canadian content) process. What if that video is spoken in Hindu, for instance? Hindu is not an official language of Canada. Does that video suddenly become less Canadian or less valid than one that is spoken in English or French? No, but the process of certification could lean against having that content deemed “Canadian”. That is where you might run into discrimination in the process which can very easily be legally problematic.

This isn’t even getting into the financial discrimination that the process runs the risk of running in to. On the one hand, the established media has access to lawyers and experts to help with the certification process. Someone working with a cell phone, a couple of cheap editing tools and no third party help is inherently going to have a much harder time with such a certification process. That, in and of itself, is systemic discrimination.

At any rate, this is the latest lawsuit that made an appearance. Much like most of the other lawsuits, you can bet this story doesn’t make the evening newscast. The media really doesn’t like airing these kinds of doozies given how much they are supportive of the Online Streaming Act. Oh well, you can at least hear about here on Freezenet, so that’s something.

Drew Wilson on Mastodon, Twitter and Facebook.