At present, the federal government is considering numerous pieces of legislation looking to address the challenges posed by the proliferation of the internet. The debate surrounding Bill C-11, the Online Streaming Act, has highlighted the need for the Canadian government’s involvement in addressing the internet’s impact on various areas of Canadian society, as well as the risks associated with developing solutions without a comprehensive understanding of the complexity surrounding these issues. Nonetheless, while it may be seriously flawed, the Online Streaming Act represents the Canadian government’s first foray into grappling with the complex challenges of internet governance.
With a rapid push from the Liberal government, Bill C-11 has been able to move forward with limited debate. Once passed, it will empower the CRTC to determine its own definitions for what constitutes “Canadian Content” (CanCon) online, as well as the means through which this content is to be regulated and promoted. While Bill C-11 represents a long overdue effort to update the framework established by the Broadcasting Act, applying this framework to address the complex challenges of today posed by the internet appears tenuous at best.
Sitting before the Senate, the Online Streaming Act has prompted considerable criticism from the official opposition, tech giants like Google and YouTube, news outlets, and over 40,000 Canadian content creators. If or when the Act is passed, it will expand the existing regulatory regime established by the 1991 Broadcasting Act and broaden the mandate of the Canadian Radio-television and Telecommunications Commission (CRTC) to include online streaming platforms like Netflix, Disney+, Amazon Prime, and YouTube.
In essence, Bill C-11 is meant to address the increasingly large economic weight of these streaming platforms, and the implications of the uneven regulation between online platforms, traditional television, and radio media companies (like Rogers and Bell Media) on the Canadian cultural economy. Much of the concern over the implications of this Bill for Canadian users and content-creators stems from uncertainty regarding how the Act will be applied to smaller streaming platforms and to user-generated content. The Bill currently leaves several key terms undefined, allowing the CRTC to determine not only their definition but also the extent of its authority over “online undertakings” other than streaming giants like Netflix at a later date.
If one accepts the need for policies to protect Canada’s “cultural sovereignty” and the CRTC’s role in this process, then the need for something like the Online Streaming Act is clear. The current rules governing broadcasting and CanCon have not been updated in over 30 years and have failed to keep up with changes in how Canadians consume media in the age of smartphones and social media. Over the past few decades, online media giants have grown in size and influence, exerting increasing control over the content available and prioritized for Canadian users through recommendation algorithms which utilize their private data. This process of determining what content to recommend to users is not neutral, nor is it transparent, yet it has a profound impact on what audiences are aware of, ultimately dictating what is (and is not) watched by Canadians. Rather than seeking to impose new control over the content consumed by Canadians, the Online Streaming Act seeks to insert the federal government into the current process of shaping and regulating how content is delivered to Canadians. Increased government oversight on this process also has implications for the regulation of how Canadians’ private data is used by these platforms moving forward.
Concerns over the use of private data on social media platforms have risen in recent years in relation to electoral interference and disinformation campaigns. Increasingly powerful methods of data analysis make it easier for actors to target individuals directly using their personal information, and engage in actions such as disinformation campaigns. The capacity for online platforms to enact censorship policies or support state efforts to promote or suppress certain messages further demonstrates the potential these platforms have to wield significant influence over its users. Considering this, several states including Canada, have begun to push back, seeking to exert their sovereignty into the online sphere to better monitor and regulate these platforms.
While there is a clear need for some form of government regulation regarding the impact of online streaming services on Canada’s cultural economy, Bill C-11 in its current form is far from a perfect response to this need. It is vaguely worded, its implications for Canadian content creators are unclear, and its impact is likely to be harmful for both Canadian users on these platforms and the promotion of CanCon internationally. Contradictory statements from CRTC Chair Ian Scott about the scope of Bill C-11 and the intentions of the Commission have resulted in uncertainty for Canadian content creators who rely on these platforms for their livelihoods. The protectionist stance towards CanCon outlined in Bill C-11 also has the potential to strain Canada-US trade relations, with US officials raising concerns over Bill C-11’s potential negative impact on American streaming services. This could pave the way for retaliatory tariffs on Canadian industries beyond the cultural sector in response to violations of CUSMA provisions on the treatment of digital products.
Due to significant opposition towards the Online Streaming Act in its current form, the Senate Committee on Transport and Communications has refused to rush its review. There remains hope that the committee’s proposed amendments to address some of these shortcomings will be accepted by the House. Yet, the question of how Bill C-11 was put forward in such a state and the apparent rush to pass it on the part of the Liberal government requires further investigation. It is possible, as some commentators have suggested, that this is simply a move meant to score a quick political victory at the expense of proper debate. Regardless of the reasoning behind the rush to pass Bill C-11, Canadians are left with a sense of uncertainty towards the ineffective approach to governing the internet, online streaming services, and Canadian broadcasting relative to Canada’s cultural economy.
There is a need for greater involvement of the state in the governance of the internet. Canada is no exception to this. Despite their messy implementation, the numerous internet Bills before the House and Senate represent a seemingly genuine effort from the Canadian government to regulate the internet and its impacts on Canadian society, a welcome development considering the current status quo. Arguments that the Online Streaming Act infringes on Canadians’ freedom to choose what content they are exposed to is misguided, as streaming services already utilize user data to recommend personalized content, thereby shaping what Canadians are exposed to without transparency or oversight. By asserting the Canadian government’s authority to regulate the processes that utilize this information, Canada has taken an important step in the right direction. Systems of public accountability like the CRTC’s oversight and judicial challenges may be imperfect, but they offer a significant improvement over the current practices of streaming platforms.
What remains to be seen is how Canadian users and online streaming services respond and the extent to which these powers will be used by the CRTC and Canadian government more broadly. The ability to regulate what content is available to Canadian audiences has the potential to foster a more inclusive and vibrant selection of CanCon online, or it could strangle the success of existing Canadian content creators in favour of legacy media. The expansion of this regulatory influence over what Canadians are exposed to online could one day be used to combat foreign interference, misinformation, and hate speech online. It could also be abused to allow for censorship and protectionism. Ultimately, while the Online Streaming Act concerns itself with the isolated area of cultural sovereignty and entertainment, the implications of direct regulation of online content are larger than many think, signalling the first step towards a Canada that is actively engaged in internet governance.
Jacob VanderBurgt is a graduate student at the Norman Paterson School of International Affairs, pursuing an MA in International Affairs with a specialization in international organizations and global public policy. He also graduated with a BA from Western University with an Honors Specialization in International Relations. Jacob’s research interests include data governance policies and the challenges involved in internet governance, as well as reconciliation efforts and UNDRIP implementation here in Canada.
