May 4, 2021
Canadians frequently upload audio and video content online as a means of communication with one another – it is something that looks nothing like traditional broadcasting and should not be governed by the same rules. A free and open internet is vital to Canadian society and to the protection of free expression – but that freedom and openness is at risk with recent changes to Bill C-10 that could treat this type of content as subject to a wide-ranging regulation.
Much has been written in the news over the last week or so about Bill C-10 and its potentially serious implications for freedom of expression in Canada. If you haven’t been following along, the Bill is the federal government’s attempt to bring online audio and video streaming services into the fold of the Broadcasting Act – something that the government has argued is vital to supporting the Canadian cultural sector and levelling the playing field, so that traditional media outlets can more effectively compete with online businesses. The initial purpose was to capture revenue that streaming services like Netflix and Spotify make in Canada and reinvest in the cultural sector. But how does this legislation impact ordinary Canadians who upload audio and video to social media platforms? What will it mean for vloggers, Tik Tok users, podcasting? At the moment, the Bill’s implications are far from clear.
When it was first tabled, Bill C-10 built in exceptions to ensure that users who upload their own content to a social media platform would not be considered broadcasters and that their content would not be subject to the regulatory tools that are available under the Act. The regulatory scope of the Canadian Radio-television and Telecommunications Commission (CRTC) is broad, and the body has significant discretion under the Act. It is one thing to subject industry actors to regulation, but user-generated content (aka UGC) is quite different. Excluding users and their content from the Bill’s scope was what the government relied on in justifying any restrictions on free expression that would result from the amendments to the Broadcasting Act. Although as a policy matter there are a lot of questions about the government’s approach to online streaming businesses, CCLA was not particularly concerned about the freedom of expression issues arising out of Bill C-10. That changed last week, when the Committee studying the Bill voted to remove one of the exceptions for UGC.
Under the amendment, users will still not be treated as broadcasters under the Act, but the content that they upload would be subject to regulation as programming. We don’t yet know what this would look like, but it represents a major shift from the approach that the government said it would be taking when introducing the Bill. Many advocates have sounded the alarm about this change. In response, the government insists that it is not their intention to allow for the regulation of UGC – your cat videos and podcast rants are not their concern. Unfortunately, the amendment made at Committee opens the regulatory door and allows this government, the CRTC, or any future governments or regulators to walk through it. The government has now said that further amendments to the Bill will be introduced to ensure that UGC is clearly excluded from the Bill’s scope. We’ll be watching carefully to make sure that happens and that Canadians’ freedom to express themselves is not unduly restricted by Bill C-10. There is no compelling reason to bring UGC into the scope of broadcasting regulation and many reasons to exclude it. CCLA will be monitoring the Bill as it moves forward and will be paying close attention to the amendments that the government is promising.
Cara Zwibel is Director of Fundamental Freedoms at Canadian Civil Liberties Association
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