Senate Hearings on Bill C-11 – A Look at Hearing 18 (Part One)

We continue our special coverage of the Bill C-11 senate hearing. This covers roughly the first hour of the hearing.

The special coverage of the Bill C-11 senate is continuing. This time around, both hours were taken up by a single hearing, so we will cover roughly the first hour of this hearing. There is, after all, no segments with this particular hearing.

For those who are curious, here is the coverage of the previous hearings:

Hearing 1 – Privacy Commissioner and Global Affairs/Justice Department
Hearing 2 – Digital rights organizations and lobby groups (1)
Hearing 3 – Lobby groups (2) and platforms (1)
Hearing 4 – Lobby groups (3) and lobby groups (4)
Hearing 5 – Lobby groups (5) and lobby groups (6)
Hearing 6 – Music Canada / platforms (2) and lobby groups (7)
Hearing 7 – Scholars/researchers (1) and digital first creators (1)
Hearing 8 – Digital first creators (2) / lobby groups (8)
Hearing 9 – Digital first creator (3) / lobby group (9) / platform (3) / Lobby group (10)
Hearing 10 – Record Label / Lobby Groups (11) and Scholars/Researchers (2)
Hearing 11 – Scholars/Researchers (3) and Lobby Groups (12)
Hearing 12 – Scholars/Researchers (3) / Digital First Creators (4)
Hearing 13 – Statistician / Lobbyist (13) / Canada Media Fund / Lobby Groups (14)
Hearing 14 – CNIB / H264 / Lobbyist (15) and Lobby Groups (16)
Hearing 15 – Lobby Groups (17) / Lobby Groups (18)
Hearing 16 – Canadian Taxpayers Federation / Lobbyists (19) / Lobby Groups (20)
Hearing 17 – Indigenous organizations / Digital First Creator (5) / Lobby Group (21)

This is the hearing that caused a lot of anticipation. This given how much CRTC Chair, Ian Scott, confirmed a lot of what critics have said all along. This includes the fact that Bill C-11 regulates user generated content, that the legislation also manipulates outcomes of algorithms, and that the CRTC doesn’t base their decisions solely on the Canadian Charter. Both Bill C-11 supporters and critics have a rather long list of reasons to not be a big fan of the chair, so he is arguably one of the least popular figures in the entire debate.

The link of the video we are following is here, so you can follow along with what we are watching. As always, nothing beats the original video or an official transcript in terms of thoroughness, however, we are happy to provide a detailed summary and analysis of what we saw and heard. So, with that, let’s jump into this hearing.

Opening Statements

CRTC CHair, Ian Scott, started with his opening statement. He said that when he spoke with them in June 2022, he spoke about the importance of Bill C-11. Since then, their opinion has not changed. Bill C-11 proposes changes that are needed to modernize Canada’s Broadcasting Act.

From there, he said he’d start with some of the concerns raised – specifically, user generated content, algorithms, and official language minority communities.

He said that he would like to start with user generated content. Bill C-11 draws a distinction between the users of social media, on the one hand, and the platforms themselves on the other hand. It’s intent is to exclude individual users from regulation (not the point of debate, it’s the users content that is at stake, not the users themselves).

The bill, he continued, would allow them to require that social media media platforms support the development of Canadian programs, make content discoverable and accessible to persons with disabilities. The CRTC is not being given the power to regulate individual users in relation to the content they create (oddly worded, but the bill does allow the CRTC to compel platforms to surface content, thus negatively impacting those users content in an indirect way in Canada). He wished to assure the Senators, and Canadians more broadly, that the CRTC has no intention of regulating individual TikTokers, YouTubers, or other digital content creators (again, not the point of the debate. It’s the users content that is the focus of attention. It’s actually impressive that, after all of this time, he thinks people will fall for this kind of misleading talking point).

He said that he understands that the committee has heard a great deal about discoverability and algorithms and how Bill C-11 would provide the CRTC with the power to impose conditions to enhance the discoverability of Canadian content. Unfortunately, his previous remarks have been taken out of context by some witnesses that have appeared before Senators. So, he wishes to be very clear. The CRTC’s objective is to ensure Canadian’s are made aware of Canadian content and that they can find it. It is not about manipulating algorithms (I don’t believe that), it is about encouraging innovation (the only innovation this encourages is to circumvent whatever dumb system you demand platforms to implement). Among the new objectives proposed by C-11, online broadcasters should encourage the promotion and discoverability of Canadian content in both official languages as well as indigenous content (naturally as long as it’s not those “unprofessional” videos of course). the CRTC will have tools at its disposal to achieve this objective.

For example, he continues, online broadcasters could commit to promoting Canadian content through online and offline marketing advertising, curated music lists, or promotional reels. The CRTC could request an online broadcasters report on the measures they have taken to promote Canadian and indigenous content. What the bill will not do is allow the CRTC to mandate the use of specific algorithms or source code to achieve the objective of promotion and discoverability and they have no issue with that limitation (again, not the point of contention. It’s about compelling outcomes that’s the problem.)

In addition, he says, that prior to putting in place any regulatory obligation that affects online broadcasters, domestic or foreign, they will hold public consultation. Online broadcasters and consumers and other interested parties can and will have their say (subject to expensive lawyers, regulatory jargon barriers, geography, awareness, and other barriers to entry of course). The views of everyone that participates will be considered by this commission when putting in place measures to promote and make discoverable Canadian and indigenous content.

He also notes that discoverability is not a new issue for the CRTC. As far back as 2016, prior to his assuming this role, they co-hosted a summit on the issue where experts from both conventional and digital media, including, by the way, YouTube, as well as government, gathered to exchange ideas about how content is created and discovered online – not leading to some sort of regulatory caveate, but rather, an exchange of views and best practices.

The final issue he says that he likes to discuss is the provision of Bill C-11 to afford consultation consultation rights to official language minority communities. He says that the CRTC is subject to the Official Languages Act and takes its obligations seriously.

From there, he spoke about Sections that may have unintended consequences. That includes Section 5.2 (2), and 34.01. For the latter, he viewed the review of all decisions every 7 years as unnecessary. He comments that the current rules provides sufficient oversight and asked that the amendment be removed.

He then said that he hopes that the legislation is wrapped up in the coming months because it is desperately needed.

(What I found, overall, odd is a government regulator lobbying for a particular piece of legislation like this. I personally would have thought that a regulator would just talk about the affects of the legislation and clarify their views on how they would regulate with this new bill, not proclaiming that they want this bill and want it now. Maybe that’s just me.)

Questioning the CRTC

Senator Pamela Wallin reviewed previous comments made by Scott surrounding whether the CRTC would control or manage user generated content. Specifically, the comment surrounding how the CRTC won’t be manipulating algorithms surrounding user generated content, but rather, making the platforms do it. She asked if he could clarify those comments.

Scott responded that he probably should have listened more carefully to the language of the quote. He said that discoverability is an objective. They are trying to help Canadians identify and find Canadian content. There are a number of ways they can do it. As he said, there are promotional reels and advertise and YouTube open studios in Toronto to support digital creators producing new digital productions in Canada and their Canadian products. There are a lot of ways to do it.

What he mentioned at the time, and he ought to have been more precise with his wording, is that a number of platforms already use their algorithm in that manner. YouTube identifies Canadian content (to my knowledge, you can input “Canada” in your bio, but I’m not exactly sure what he’s talking about here otherwise). Netflix identifies Canadian content. If you ask for drama, they will show you drama and identify some of that drama as Canadian. His point is simply that they can use their algorithm to help achieve that objective. The Commission won’t make them.

Senator Wallin responded that he also says that he wants to set up a framework to encourage those providers to deliver the outcomes that he wants. That has two troubling sides to it. Right now, the relationship is between her, the consumer, and the platform. Her behaviour then sends signals to the platform about what she wants to watch, what she wants to listen to, what she wants to see. Her relationship is with them. If Scott either wants to direct that, directly or indirectly, and have the platforms respond to a set of objectives Scott has, it’s troubling because she is not sure that her relationship should be with the CRTC, and furthermore, Scott is going to be directed by cabinet. She certainly doesn’t want her relationship to be with her government telling her what it is that she should be listening to, watching, and responding to.

Scott responded that he wanted to be clear that the CRTC is not, has not, and will not be trying to direct what consumers watch. What they do is to attempt to do is currently to further the objectives of the Broadcasting Act which includes the production, distribution, and discoverability of programming (if you don’t want to control what consumers want to watch, how in the heck does that square with furthering the objectives of the Broadcasting Act in regards to distribution? It makes no sense). No more today do they tell Rogers or Corus what to put on air or what consumers should watch.

Will they do that for platforms in the future? What they do is provide a policy framework. For example, programs of national interest. There are requirements for expenditures in those areas. Question in the future is what are appropriate and equitable measures that could be applied to providers that are operating on a digital platform? That’s what they are doing. Not directing consumers to watch or controlling what they watch.

Senator Wallin said that what she has in front of her (part of that is garbled, but I think that’s what she said) and if the signals she is sending are being overwritten by another set of rules, she quotes Scott as talking about the CRTC having tools at their disposal.

Scott responded by saying that there are lots of things. Today, they encourage, for example, the production and creation of indigenous content. He spoke about a summit where they were asking companies to report about their practices for women in television and asking them to commit to annual voluntary reports on their progress. That is a way the Commission can encourage an activity. They can encourage them to advertise. They can encourage them to use lots of tools. His point is that there are lots of things in the toolkit and they will be used to promote the objectives Senators ultimately decide are part of this legislation.

Senator Wallin said that she just has to say that, as a consumer or participant in this business, it’s very different to how she relates to a television screen which Scott have mandated that there be “X” percentage of Canadian content and any other kind of thing and how she reacts and interact with the platform- (time elapsed).

Senator Julie Miville-Dechene quoted Scott responding to her saying that he doesn’t want to manipulate the algorithm, bur rather, he wants the platforms to manipulate it to produce a particular outcome. So, this is quite clear, it seems to her, saying that, at this time, Scott was of the opinion that if this is what was needed, Scott wanted the industry to manipulate the algorithm to obtain those particular results. So, she was wondering why Scott was saying that he was misquoted.

Scott responded that this is an accurate reflection of what was said. What he’s trying to explain is that this is a very narrow example. There are numerous ways to promote discoverability. Use of the algorithm is one. The CRTC produced a report called “Harnessing Change” earlier in his mandate, and they focused on that we need to use a variety of approaches that are equitable and that are dynamic and flexible to achieve objectives of the Act. The use of algorithms by players is a tool they use. They are focused on outcomes. Here are the objectives, the outcomes is to help Canadians discover content. Algorithms are one, but as he mentioned, there are several other ways of doing it. Yes, they would encourage them, they would encourage them broadly at their disposal.

Senator Miville-Dechene asked if that includes algorithms. (I didn’t expect this senator to press this. A pleasant surprise.)

Scott said if that works for them. It’s not a question of “You will use their algorithm to do ‘X'”. It is the desired outcome is to encourage discoverability. Show the CRTC how you will find content and the algorithm is one tool that they will have at their disposal. If his words were unclear, he is trying to be as clear and transparent as possible.

Senator Miville-Dechene said that let’s take a political situation. A platform has to generate results. Scott asked for results. Let’s say Scott wants results in terms of francophone music on a platform, and the platform is unable to generate the results Scott is asking for with what we call static recommendation. Everything that is static. At this point, will Scott say to the platform, ‘you have not obtained the results, so now take other means algorithms to obtain that particular result.’ Scott is asking for it.

Scott responded that he is always wary of responding to hypotheticals. He would agree with everything Miville-Dechene said up to the point where the Senator say ‘you will use an algorithm’. He would change that and say ‘you’ve reported that you are not fulfilling a particular objective that we have established. If you are not achieving it, the same is true today with linear and traditional providers. We receive reports. We know whether they are meeting their conditions of license obligations, and if they are failing to do so, we seek resolution. How will you achieve it then?’ Miville-Dechene added, ‘so will make them use their algorithm?’ He wouldn’t suggest that would be an outcome, certainly not an approach he would take. It would be, ‘so now tell me how are you going to meet that policy objective? How are you going to meet that obligation?’ Not ‘you will do this or that.’ Similarly, the CRTC doesn’t tell them today to spend CCD contributions on a particular kind of music. Rather, they direct funds to a french music fund and an English music fund and they will portion it to achieve a result.

If, he continues, one side was not being successful, the Commission might consider a change in the ratio. All of these things are not done in isolation. They are done through a public hearing process. We are parties. We’ll come and give evidence and make submissions and develop a public record on which we make decisions. We don’t make these decisions in a back room. We make them based on a record in public proceedings.

Senator Miville-Dechene commented that generating results, does that mean, more clearly, quotas? Because you will have to have targets. So, does that mean, we know that in France, for example, you have 30% quotas on Netflix. What about Spotify? We all know that there is very little listening to francophone music.

Scott responded that, so, clearly it would be inappropriate for him to say what the Commission might rule in the future. What he would would say, and again, he would refer the Senator to the Harnessing Change report, what the Commission will be looking for are equitable rules. So, these are different companies. Whether it is Netflix or YouTube as opposed to Bell or Quebecor, they are different creatures. They are a different line of business. They operate differently to Senator Wallin’s point. A simple taking of the old regime and applying it to the new makes no sense whatsoever. That’s why the Commission will work on developing a new framework that is equitable. Not necessarily the same rules at all.

Senator Fabian Manning noted that one of the concerns here is the CRTC’s lack of own transparency and accountability. They’ve had Monica Auer say that when we say that the CRTC is transparent, it is simply not. They have hearings featuring dozens of witnesses on publications that you can’t see. These are serious concerns, especially for smaller players in the broadcasting system, and will also be for digital creators, in particular going forward (I didn’t get a few of these words) the CRTC has to address these shortcomings these people put forward and if Scott has any plans to address that.

Scott responded by saying that he is perplexed and confused by that statement. They hold all of their proceedings publicly. The only things that are held confidential, whether it is in the telecommunications or a broadcasting proceeding, relates principally to business confidential matters. Parties are entitled under the statute to seek confidential treatment of certain information where disclosure would be harmful. Otherwise, everything they decide upon is a matter for public record. So, he’s not sure what they are addressing. If they mean their meetings, their deliberations are private, as with any quasi-judicial body, but the decisions, the results of their deliberations, are entirely transparent and public. So, frankly, he is at a loss to understand where the lack of transparency might be.

Senator Leo Housakos jumped in and said that, if he may, they’ve had a number of independent content producers that don’t have the legal capacity, financial capacity of Bell Media, of Rogers, of Quebecor, and he could go on, and they feel they don’t have accessibility. They feel that they don’t have accessibility as individuals. He thinks that’s what Senator Manning was referring to. That can’t be diminished because they’ve heard it over and over again throughout this deliberation.

Scott responded that he appreciates that, but that’s a separate issue. Transparency and the ability or financial ability to participate are not the same issue. They do take measures. There is a broadcast participation fund that has been established that is there to help not for profit public interest oriented groups to participate in broadcasting proceedings. This Act will allow for more support similar to that which is contained in the Telecommunications Act. (Digital First Creators are generally not a not-for-profit venture.) They are engaging in extensive outreach to maximize the ability of Canadians whether they are small individual Canadians or other stakeholders to participate (I certainly never got that invite). So, they certainly strive to do that (you are making me consider calling that bluff out too). Obviously, their respective resources are not the same. The weight on the record is because when they deliberate, they consider all of the evidence on the public record.

Senator Manning said that he wanted to get back to the user generated content. Scott and the Minister, as well as some of his colleagues have stated that while Bill C-11 does give the CRTC power over user generated content and even claimed that the current Broadcasting Act does so, that this will never happen and that we should all trust the CRTC and trust the powers that be. Scott testified in front of the House committee that as constructed, there is a provision that will allow them to do it as required, but Scott has said that the CRTC has no intent to do so. His concern is can Scott guarantee that the next person that sits in his position Scott is in today will follow through on what Scott is saying today? Is there any provision in this bill that Scott is aware of that protects the future, that protects us going forward in relation to that decision? What’s to stop a future Chair from doing so?

Scott responded that the Chair doesn’t make the decisions for the Commission. Nine members makes decisions based on the advice of over 500 experts (didn’t catch that word) and legal experts. The Chair doesn’t make these determinations alone. He hasn’t, nor will his successor. What they have and he characterized it precisely and accurately, what they said is that we are not interested, as the regulator, in individual uploaded content because that’s not what the focus is. The focus is on regulating broadcasting undertakings. So, the focus will be on the platforms. There are specific provisions in the Act that his colleague can speak to that creates some exceptional areas.

He will give Senators a reason, one example, for why that’s in there. A platform, such as Facebook can be just that, an intermediary of news and connecting individuals. That’s fine. Sometimes, Facebook is a broadcaster. They have had, on their platform, live coverage of Blue Jays baseball games in the past. When they engage in broadcasting, they will be of interest to the CRTC. That distinction that they’ve been trying to draw and try to emphasize is that’s not the same as individual content being put up on TikTok or YouTube or anywhere else on platforms (then why not put thresholds in the bill if that’s the case?). It’s the platform they will be looking at, not the individual user. We can speak to the specific provisions in the Act if that’s helpful, but I think you have it accurately.

Senator Paula Simons noted that they’ve had witnesses come before them to express concerns about Section 7 – 7.7 to be precise. She also cited concerns about Section 34.995. She asked about the CRTC’s position about the possible diminished powers of the CRTC.

Scott responded by asking if she’d be shocked that he’d like to have greater independence than lesser independence? It’s not for them to determine. It slightly lessens the independence of the Commission.

Senator Simons said that when they have spoken to the government about this, the answer was that Section 7.7 is to escape the possibility of a CUSMA violation. She asked about the difference between the powers going to the governor in council vs the CRTC.

Scott responded that he’s not sure he can. He can’t answer why they hold that view.

Senator Simons asked if 7.7 remains and 34.995 remains unchanged, what powers would the CRTC lose.

Scott responded that’s it’s not a question of losing, but about moving the balance point.

Senator Simons asked if it would allow the future government to micromanage.

Scott responded that he wouldn’t use those words.

Senator Simons asked him to pick his own word.

Scott said that it is a spectrum and it moves the balance point in the spectrum.

Senator Housakos commented that the truth of the matter is that the Minister of Heritage and, in Scott’s case testifying before both houses, and on both occasions, its been crystal clear that this bill, the previous Broadcasting Act, gives the power over user generated content. There is no denying that. The CRTC has that capacity if they wanted it, exercise it. If anyone denies it, they are threading a needle that is just not honest. Following that aftermath statement in the House, which, he’s following up on a question from Senator Manning, MP Bittle, and we all know who MP Bittle is (unfortunately, yeah, I know about him too), asked if the CRTC had ever regulated actual content rather than just distribution, and Scott replied that he doesn’t dictate content, neither what is broadcasted nor what is watched, which is similar to what he is saying tonight.

The truth of the matter is, Senator Housakos continued, that at that time Scott was giving that testimony, he was aware, and as it turns out now, we are all aware, the CRTC was sitting on a ruling regarding content from a Radio Canada Broadcast in which a racial slur was used. The Commission sat on this for a number of months as the debate around this bill unfolded. So the question is very simple, when Scott tells him that he doesn’t have power over generated content, clearly, he exercised power over generated content vis-a-vis Radio Canada, and that very famous racial slur that he doesn’t want to use here. There was outrage and criticism by his fellow Quebeckers across the province for censorship. So, his question to Scott is very simple, does he consider the decision the CRTC made in regards to Radio Canada and that particular racial slur as controlling content or does Scott have another definition? That, to him, is very much controlling content and that is at the very core of what he is concerned about in terms of the authority and power that was exercised in this tangible case.

Scott responded that he would disagree with his statement. He does not believe that is interfering with content (LOL). They have established in Canada codes of conduct for content. It is what he calls a co-regulatory model. For the private broadcasters, it is in the hands of the Canadian Broadcast Standards Council (CBSC). All broadcasters are members. When offensive or questionable content arises, the matter goes to the CBSC, and they issue rulings. They do not control, nor does the CRTC, what is said, but rather whether the content was appropriate and abided by those codes.

In the case of Radio Canada and the CBC, Scott continued, they are not members of the CBSC, they have an internal ombudsperson. One for the CBC Radio Canada for English services and, ultimately, in both cases, matters can be escalated to the CRTC for final resolution if the complainant is not satisfied. In that case, and he is going to stop very shortly after this, as Senators know, the matter is under appeal at the Federal Court of Appeal, so they are not going to comment further. The decision speaks for itself. The question of whether or not they exceeded their jurisdiction is in front of the court, but the jurisdiction related to the application standards, not the content itself. They don’t say what can and cannot be broadcast, but if they receive a complaint from an individual, and we’ll use a different example, that uses a different racial slur, and it comes to their attention, they will deliberate as they did when they rendered their decision (I don’t think Scott is helping his case here). It speaks for itself.

Senator Housakos commented that it does speak for itself. With all due respect, Chair, the CRTC did regulate content in this case and that’s why it’s before the courts. That’s why it is being litigated.

Scott interrupted and said that, with respect, that’s the Senator’s interpretation.

Senator Housakos responded that it is his interpretation, but many people, particularly in his own province share that interpretation, and that’s why we are in this quagmire and why it really has called into question the risks that are associated with Bill C-11.

Scott interrupted and said that, with respect, the complainant was also from Quebec (I’m not sure how that changes anything).

Senator Housakos responded that, yes it was, but again, Scott took a decision in regards to content and that is something that he’s not something that he is imagining and, again, he guesses that it will be decided by a court of law, but again it also reinforced the fact that the CRTC has that authority. He’s not saying the CRTC did anything wrong, all he is simply saying is that the CRTC has the authority vis-a-vis Bill C-11 as he has had it under the Broadcasting Act. That’s all he’s said. That’s why the CRTC is the powerful agency that it is. It’s a decision that Senators, as legislator’s, have given Scott that authority. He’s not questioning what Scott did. The CRTC exercised that authority of regulating that content. His debate is here vis-a-vis before it gets to that level that he doesn’t believe that authority should be given frivolously.

Senator Jim Quinn commented that his first observation is that he appreciates the earnest and clear description because it is helpful with a whole series of witnesses that they’ve heard and their concern about a lack of clarity in certain areas of the bill. Senators have had witnesses propose a whole amendments to bring clarity to the bill. For example, the user generated content. There was no intention on doing that, but it’s not clear in the bill for the people that have appeared before them. They do agree that there are areas that lack clarity that need to be amended so that there is clarity for the population that is effectively every Canadian.

Scott responded that he should choose his words carefully as he’s always been. Of course he would agree that there are amendments that he’s identified that the Commission would like to see. He would return to the point that the CRTC doesn’t draft the legislation. He is not trying to defend the legislation. That’s the job of the minister and the department. He’s trying to, as best he can, with his colleagues, help Senators understand how the CRTC reads the legislation. How the CRTC would interpret it and how the CRTC would act in the future without, obviously, finding a future Commission. So, that’s what he is trying to do. Could Senators remove that? Of course they can. There are numerous other amendments. Then you would potentially create some other problems. He assumed that the intent of the government was to deal with the very – the kind of example he gave Senators. Let’s make absolutely clear that Facebook is excluded. Then what do you do when Facebook starts broadcasting? So, that’s the dilemma, and it is for Senators, as lawmakers, to decide on the ultimate content, not him.

Senator Quinn commented that any piece of legislation, does Scott not agree that it should be clear so that the stakeholder community affected has that clarity so they have certainty on how to proceed?

Scott said “yes”.

Senator Quinn said that the other thing he is trying to figure out is the relationship between policy directives, regulation, and the bill, and all of those types of things, and there’s been a lot of discussion in this committee of they have not seen the policy direction and whatnot. When the bill becomes law, he would assume there would be, if there’s amendments or alterations, whatever that policy direction is. Has the department talked to the CRTC, consulted about policy direction and what that might be?

Scott responded that he hasn’t seen the draft policy direction. Senator Quinn is aware that there is a provision in the existing Broadcasting Act that requires any proposed direction to be- first, the CRTC has to be consulted and subsequently, obviously, go before Parliament. There are always at the level of officials some consultations on legal provisions on elements, but, to be clear, no draft policy direction has been brought to the Commissioners – himself and fellow commissioners.

Senator Quinn said that, so officials may have-

Scott responded, yes, some elements of that. As is the normal course of business.

Senator Quinn continues, saying that the other part is that a lot of people talked about the CRTC being a great organization, 100% confidence and Senators have heard from Senators that say quite the opposite. So, they have this group in the middle who are saying “we’re not sure. We’re kind of suspect but we’re not sure.” So, would it be beneficial, and Scott talked about checks and balances, wouldn’t it be beneficial to have a check and balance that said “regulations that are being brought forward, and goes through the vetting process, to come back to the committee’s of parliament, not to approve or disapprove, but to ensure that they are consistent with the Act and consistent with policy directives set, by that point, we should be able to see”?

Scott responded that he thinks there are a number of elements to that. Just to premise that first part of Senator Quinn’s question, this is a wonderful organization and it deals with some of the most challenging and public issues every day, every month, every year. So it is not surprising that Senators get a wide range of comments. However, he cannot possibly, in his turn, without answering that it is a tremendously hard working and sincere organization that always strives to deliver balances in the public interest. So, it’s not meant to be an advertisement, but it is a passionate defence of the agency itself. As to the mechanics of the policy direction, he turned to the legal council.

Rachelle Frenette commented that she thinks when Senator Quinn was asking about specifically the CRTC’s regulation authority, under the Act, the Commission is required to publish any draft regulation. Those regulations are made in concert with their colleagues at the Department of Justice subject to public comment and then are made and published. Those regulations can also be the subject of certain Standing Committees and the scrutiny of regulation. So there is a number of checks and balances when the Commission is called upon to make regulation.

Senator Rene Cormier commented that, respectfully, he does not share Scott’s opinion on some issues with respect to the protection of francophone minorities. Senators have heard from many people who have appeared at the committee that 5.2 (2) refers to that refers to the various consultations carried out under 5.2 (2) who are actually done. He then said that his concern deals with 3.1 (f). He asked about how the bill distinguishes between foreign and domestic online operators.

Scott responded that the CRTC strives to achieve a balance in their objectives.

Sentor Cormier pressed on why there should be a distinction in requirements.

Scott Shortliffe responded that it is not their bill, but he understands the idea for foreign undertakings.

Senator Cormier commented that he doesn’t understand why those two categories were established.

Scott responded that it’s about finding equitable rules. He said that it’s about getting the broad policy, but also being given flexibility for different players.

Senator Cormier said that he’d like to hear Scott on foreign hearings. Unfortunately, the notion of public hearings is not extended- (his time expired)

Senator Marty Klyne commented that Scott made reference to $900 being added to the market as a result of this bill. On that, he has two questions. If that’s incrementally coming from the online streamers, will that be on the backs of their audiences or subscribers? His concern is that the shareholders of online streamers won’t be giving up that money. The second question: where will these new moneys be directed or purpose? In the production of better Canadian content and/or the promotion of good Canadian content?

Scott responded that he assumes he means $900 million. That number, he believes, came from the Minister. If he ever said it, it was repeating a number provided by another source.

Senator Klyne asked if it would be incremental revenue.

Scott replied that he certainly would expect it to be, yes.

Senator Klyne asked where it will be coming from and how would it be repurposed.

Scott responded that how it will be dealt with will be exactly what the first public proceedings that the Commission will have. They have been working while this legislation was being developed to identify what are the key questions will have to be asked going forward if and when this law is passed. That will be one of the key ones vs what is the contribution arrangement? How much and how it will be deployed, those are the very meaty and meaningful proceedings that will take place in front of the Commission.

Senator Klyne asked if the bill should prescribe policy and regs to some extent to identify that.

Scott replied that personally, he does not. Scott asked if he could answer why. Senator Klyne said “sure”. Scott said it’s because the last time the law was changed was 30 years ago. It is not easy to change structural legislation. Secondly, they are the expert regulator. They understand the puts and takes and they can gather evidence here and render decisions and they will change from time to time.

Senator Klyne said that the legislation, if passed, would ensure that online streaming services would showcase Canadian music and stories and support Canadian creators and producers. It would make programs by talented artists in both official languages more accessible to Canadians. He’s heard reference to this bill making Canadian content “discoverable”, but little to nothing about making Canadian content sought after which is what the CRTC will be pursuing to make it an aim or an objective. Is it discoverable or sought after?

Scott responded that they aim – and he’ll put this in the most general terms – how he likes to describe whether it is the purpose of the Broadcasting Act or this current piece of legislation is to ensure that Canadian stories, in both official languages and increasingly reflecting indigenous and racialized communities, are told, that they are distributed, produced, distributed, and can be found. Popularity is not their job.

Senator Klyne asked if Scott has, in his mind, a strategy on execution in how Scott makes that happen.

Scott replied that he does, but it’s for a future Commission proceeding and based on a record on all of these well meaninged, well informed witnesses that Senators have been hearing from will come and make their case and add to the record and will develop that framework and he looks forward to seeing the Commission do that work.

(This takes us up to the time stamp of 19:44:40. For the interest of breaking this up into more easily consumed chunks, we will leave it off there and continue this in part two. After all, this is a huge two hour hearing.)

Concluding Thoughts

One thing that did strike me when hearing, at least, this part of the hearing, is how many times Scott tries to find some sort of hair splitting to escape some of the harder questions. For instance, he doesn’t like the idea that the CRTC would ultimately be tasked with regulating user generated content. So, instead, he says that he is not regulating content on platforms like TikTok or YouTube, but rather, regulating the platforms. It is a distinction, in my view, that doesn’t exist in practice because the content is the platforms. You can’t practically have a platform like YouTube without content.

So, Scott further says how the CRTC is only after content produced or carried by the platforms themselves such as the mysterious baseball game streamed on Facebook. If that was the case, then it makes no sense to not make that distinction in the bill. After all, if that is the content that is being sought after for regulation, then why not write it in the bill that if content is produced or commissioned by a platform, then it would fall within the mandate of the CRTC to regulate. This as opposed to the current wording which basically says that content that directly or indirectly generates revenue. To me, that is a trivial adjustment to make.

The response from Scott on that front seems to be that it’s about making the bill “flexible” so that the CRTC can regulate as it sees fit. At that point, the question is, what flexibility is the CRTC seeking at that point? The example he provided would be covered and it would fix the legislation on the front of making it clear that user generated content is out which is something that digital first creators have been seeking from the beginning. If the CRTC’s response is that it does not want to regulate user generated content, where in the world is this missing piece of the puzzle that they are seeking? What content is being sought for regulation that would not be covered in such a fix to the bill? It makes no sense.

More and more people are increasingly convinced that the goal of this legislation is to, in fact, regulate user generated content. In my view, the answers provided so far, at least up to the aforementioned time stamp of the video, does nothing to really dissuade such thinking.

Another needle threading that Scott did that I’m not convinced is possible is the idea that the CRTC never has and never will regulate content. As Senator Housakos pointed out, when the CRTC made the decision on the CBC N-Word ruling, that was a decision that was based on the content. To me, saying that this is different and that it’s a specific circumstance, well, if that was the case, you’d think that the CRTC would respond and say that they don’t regulate the content of broadcasts, the CRTC chooses not to go into that area, take it up with the court. Instead, the CRTC ruled on the content. To me, the N-Word ruling completely destroys the argument that the CRTC does not regulate based on the content that is produced or broadcast. Whatever third explanation Scott was trying to make, to me, didn’t work.

A third observation I have is just the overall concept of watching a regulator seemingly actively cheering for the passage of this legislation, saying that it’s badly needed. Maybe it’s part of my inexperience of watching the nitty gritty details of government proceedings such as a hearing at a Senate Committee, but this struck me as odd because you’d think that a regulator would be objective and say what effects different provisions have and refrain from saying what is a great idea and what is not. That was definitely not the case with what I saw in this hearing.

A fourth observation that was touched on off and on is the idea that there are programs in place to help Canadian creators. I hear this argument off and on by supporters throughout the hearing. The problem with that is that it wasn’t designed for digital first creators such as myself. The problem is that, hidden beneath the surface of all these remarks about how there are all of these programs to help Canadian creators is an ideology that says that there are two classes of Canadian content producers. Those classes being the cultural elite in this country (i.e. CBC) and everyone else (which supporters insultingly refer to as producers of “cat videos”). For supports of the legislation, it is only the former that should qualify for any kind of assistance programs. The latter, well, they don’t count because that is “not art”.

For those who look at that paragraph and ask if that isn’t just being presumptive about how the system work, I personally actually put these ideas to the test. During the second segment of hearing 13, I heard how the Canada Media Fund (CMF) is out there looking for Canadian creators online and going so far as to contact YouTube and TikTok to look for Canadian creators to help. So, I put those comments to the test by directly contacting the CMF myself just to ask if it would be advisable that I should apply for funding so I can be better equipped to create content and tell Canadian stories. After all, being able to produce content that would be sought after starts with being well funded – at least, that’s what the CMF argued. In response, the CMF ghosted me and refused to even answer a question as simple as that.

In theory, I would be a prime candidate for an organization that suggests that they are helping projects get off the ground. The funding ability is low, but I have great ideas of producing content online and easily have the skills to produce good quality content if I just had access to those necessary tools. Ultimately, though, I proved that this talking point was little more than a front for what seems to really be going on – that is that such money is only aimed at the cultural elite who produce content and don’t need to worry about attracting an audience because they are producing content that no one wants to watch.

Personally, this does not surprise me because if it was easy to access a sort of Kickstarter chunk of cash to help get your career started, then it would have been much more widely known about in the community of digital first creators. Instead, no one that I am aware of even knows any Tiktoker or YouTuber who got their start by receiving funding from the CMF. What’s more, if that’s the CMF’s (lack of) response when a digital first creator comes knocking, I do seriously wonder if the response from other funding projects would be similar.

This is what made Senator Klyne’s question important. If platforms are to be paying into that system, where will the money go? Perhaps, unsurprisingly, Scott more or less dodged that question and simply deferred to a forthcoming process at the CRTC to tackle such an important issue.

Then there is the “just trust us” response to some of the hardest questions. It never made any sense that the CRTC absolutely must have the power to regulate user generated content, but then turn around and say that they promise they won’t use it. At the same time, even suggesting that maybe this power should be removed from the bill stirs howls of rejection for such a notion over the excuse that it’s all about regulatory flexibility. So, little wonder why there is such a heavy level of suspicion towards the “just trust us” response.

While Scott’s latest appearance was wrapped in a refrain of “clarification” of what was said earlier, the appearance, up to this point, seemed to be more about trying to weasel out of a number of earlier comments. An effort to try and smooth over his close relationship with Bill C-11 supporters in the traditional broadcast sector. Honestly, I don’t see how this part of the appearance really ended up doing him any favours.

Drew Wilson on Twitter: @icecube85 and Facebook.

1 Comment

  • DB says:

    The idea that the CRTC doesn’t regulate content is nonsense. The CRTC doesn’t tell broadcasters what shows to air, but it does orders them to air 30% of their shows from the CRTC certified pool of Canadian content. And now Bill C11 will let them mandate Canadian content on streaming services.

    Furthermore, the CRTC requires cable subscribers to buy certain content, like CBC Newsworld, Newsnet and APTN, because they’ve decided it is in the best interests of Canadians (it’s more like it’s in the best interests of broadcasters). I’m just waiting for the CRTC to order ISPs to add subscriptions to these services onto everyone’s bills.

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