Parliament reconvenes on January 31, 2022, with an ambitious agenda to reform laws affecting media and entertainment businesses.  The Minister of Canadian Heritage has a mandate “to work to introduce legislation to reform the Broadcasting Act, ask web giants to pay their fair share and combat serious forms of harmful online content”, no less.

Here are three key government objectives, with our brief commentary on why they are worth watching, even for those who don’t usually keep up with legislative reform:

1. Regulating online services as broadcasting undertakings

“Reintroduce legislation to reform the Broadcasting Act to ensure foreign web giants contribute to the creation and promotion of Canadian stories and music.”

Virtually everyone agrees that it is time to update the 1991 Broadcasting Act.  Significant disagreement, however, has arisen about whether the Act or the regulator, the Canadian Radio-television and Telecommunications Commission (CRTC), should be tasked with so much.  An Act that was originally put in place to address limited content transmitted on limited spectrum is now proposed to be a key vehicle to regulate many kinds of Internet content.  It will be worth watching: 

• Whether Canada’s new regime has the potential to impose greater regulatory obligations on online linear and on-demand streaming services than they have begun taking on in other countries.  See our high-level comparative guide here.
• Whether and how the government gives the CRTC the authority to regulate social media content.  The last Bill originally contained a provision stating that the Act did not apply to programs uploaded by users (proposed new section 4.1, at first reading).  The removal of that safeguard at the Committee review stage sparked confusion about the scope of the Act, and controversy arose over potential over-reaching, free speech, and whether the Act’s apparent application to social media would survive Charter of Rights and Freedoms challenges.

2. Revenue sharing for news content 

“Swiftly introduce legislation to require digital platforms that generate revenues from the publication of news content to share a portion of their revenues with Canadian news outlets to level the playing field between global platforms and Canadian outlets. This legislation should be modelled on the Australian approach and introduced in early 2022.”

“Level the playing field” has been a call to action by Canadian stakeholders – such as Canadian television and radio broadcasters – who are local and relatively heavily regulated, for better competitive parity with global platforms.  “Level the playing field” may sound straightforward, but it bears remembering that the playing field for content is global, and involves many layers of stakeholders, from producers to aggregators to distributors.  Updating the status quo for online content revenue models was never going to be easy.  It will be worth watching:

• How closely the legislation is in fact “modelled on the Australian approach” with its mandatory News Media Bargaining Code and arbitration regime, or whether Canada has learned from some of the stumbling blocks experienced with Australia’s “hardball” approach. 
• Whether Canada’s initiative – whatever approach it takes – is only a step on the path to an eventual global model.

3. Harmful content on social media and other platforms

“Continue efforts with the Minister of Justice and Attorney General of Canada to develop and introduce legislation as soon as possible to combat serious forms of harmful online content to protect Canadians and hold social media platforms and other online services accountable for the content they host. This legislation should be reflective of the feedback received during the recent consultations.”

The government’s 2021 online harms consultation sought feedback on a fairly complex framework of rules for social media platforms and other online services to address content including child sexual exploitation content, terrorist content, content that incites violence, and sharing intimate images without consent.  It will be worth watching:

• Which online services will be subject to the new rules.  Some platforms are more involved with and aware of the content they host, and have a clearer role in monitoring and moderating that content.  Others are simply forums with (to date) little interest, experience or role in handling user-generated content directly.
• How much platforms will need to change their existing content moderation tools and programs.  In some cases, this could mean refining the types of content for take-down.  In others, it could mean a much more significant shift from reacting to notices and complaints, to monitoring content more proactively; and that would raise not only operational but important legal issues.

Dentons Canada’s Media, Entertainment and Sports group continues to closely monitor reforms affecting media and entertainment businesses. For more information, please contact Margot Patterson or any member of the group.