“New Media”: the 1990s
The Broadcasting Act’s (the Act’s) definitions relating to “broadcasting” date back to 1991. By the mid-1990s, questions began arising about whether the Act applied to “new media”. The Canadian Radio-television and Telecommunications Commission (CRTC) held extensive consultations on “new media” in 1997-98. Stakeholders argued for and against the application of the Act to Internet services. Submissions included arguments that the Act legally did not apply, and policy arguments that it should not apply. The CRTC made a legal decision in 1999, that in many cases, “new media” delivery of audio-visual and audio content, including on-demand content, is “broadcasting” for the purposes of the Broadcasting Act. But at the same time, it made a policy decision that the Act generally should not apply to “new media” delivery of and access to that content.
Exemption from regulation: 1999 to today
Since 1999, the CRTC has exempted digital media services from licensing and most regulatory requirements under the terms and conditions of an order, currently the Digital Media Exemption Order (Appendix to Broadcasting Order CRTC 2012-409) (DMEO). The DMEO has applied to undertakings that provide “broadcasting services” that are delivered and accessed over the Internet, or delivered on a point-to-point basis to mobile devices. DMEO conditions have included narrow limits on competitive practices, and the obligation to submit information to the CRTC at its request. The CRTC has invoked the latter when seeking information from non-Canadian services in a small number of proceedings, and notably, when it expanded the list of respondents to its Annual Digital Media Survey in 2022 to include non-Canadian digital media broadcasting undertakings that provide services in Canada.
Those few occasions when the CRTC attempted to reach across the border were not without controversy. But one of the implications of the exemption order has been that in the normal course of the CRTC’s work, neither the regulator nor stakeholders, have had much reason to take a hard look at whether and how non-Canadian online media services are subject to the current Act’s application to “broadcasting undertakings carried on in whole or in part within Canada” (section 4(2)).
Bill C-11 and the road ahead
Government officials have repeatedly stated that the Broadcasting Act as amended must provide a framework to regulate “foreign web giants”. And so, the Bill C-11 amendments would mandate the CRTC to regulate online media as “broadcasting”, and – among other things – reinforce the CRTC’s authority to regulate non-Canadian services. As amended, the Act would:
- re-define “broadcasting undertakings” – the targets for regulation by the CRTC – so that they expressly include “online undertakings” (section 2(1) as amended);
- re-define “broadcasting” to expressly include scheduled or on demand (i.e. SVOD or AVOD) viewing or listening (section 2(1) as amended);
- continue to apply “in respect of broadcasting undertakings carried on in whole or in part within Canada” (section 4(2));
- declare as the broadcasting policy of Canada, that the Canadian broadcasting system “includes foreign broadcasting undertakings that provide programming to Canadians” (section 3(1)(a) as amended); and
- provide that “each foreign online undertaking shall make the greatest practicable use of Canadian creative and other human resources, and shall contribute in an equitable manner to strongly support the creation, production and presentation of Canadian programming, taking into account the linguistic duality of the market they serve” (new section 3(1)(f.1)).
The CRTC would rely on the above provisions, the common law “real and substantial connection to Canada” test (see, generally, SOCAN v. CAIP, 2004 SCC 45) and its own prior decisions about broadcasting stations and services to decide if an online service is carrying on a broadcasting undertaking at least in part “within Canada”. If the CRTC takes the position that it does have legal authority over the service, it would decide to regulate that service, or – subject to terms and conditions that it considers appropriate – exempt it from regulation.
Where it decides to regulate, the CRTC would have the power to (among other things) issue orders to online services respecting the amount of, and time devoted to, Canadian programming (new section 9.1 of the Act), and the amount and level of spending on “developing, producing, or promoting” Canadian content and “supporting, promoting and training Canadian creators” to develop that content (new section 11.1 of the Act). The CRTC would also consider copyright ownership as a factor to determine whether content is “Canadian” (new section 10(1.1) of the Act), which could have implications for deals to produce and exploit content made with Canadian partners. And it should not be overlooked that consequential amendments under Bill C-11 to other laws, including the Status of the Artist Act, Copyright Act and Accessible Canada Act, might also have some new implications for online services.
With a new wave of regulation at stake, once the CRTC begins administering the new regime under Bill C-11, we can expect to see the regulator’s reach beyond Canada tested as a matter of law and policy.
For more information on this topic, please contact Margot Patterson.