“It will fail to enact the change it proclaims we require, but first, it will piss off a lot of Canadians.“
Bill C-10 is an unconscionable overreach.
These proposed amendments to the Broadcasting Act don’t protect consumers, but do penalize them.
The parts of the Bill we can all agree with are covered by existing legislation, if only our federal government had the will to enforce it.
Canadian Content
By forcing stations to play a certain amount of Canadian music, for example, it attempted to the level the playing field for artists at home.
The Canadian Radio and Telecommunications Commission (CRTC) insists that media outlets in Canada use a certain percentage amount of Canadian content under the Broadcasting Act. And this rule is already skillfully skirted by most media outlets.
To examine CanCon laws, it’s important to understand why they exist. As it happens, I wrote my undergrad thesis on this issue, so permit me a brief history lesson.
As with many of our federally regulated industries, the reason broadcasting specifically is subject to protectionist laws is because our government believes Canada is too vulnerable to influence from the US.
Conservative Prime Minister R.B. Bennett’s government passed the first Broadcasting Act in 1932. At the time, radio signals easily bled into Canada over the air from the United States, and were often better established stations, with more money behind them. The Act would later be updated to include television signals as well.
There are two main protections the act was supposed to provide. First, Canada is so vast in size that it is prohibitively expensive for any one private company to provide communications of any kind (cell coverage, high speed internet etc) with service to every corner of the country. The Act is supposed to ensure regional parity in service as it pertains to broadcasting.
Second, the Act declares penetration of US communications into Canada as a threat to the success of locally produced content, and sets out to correct that.
Regional Disparity
Let’s use the example of cell phone coverage. In order for the citizens of Toronto to have comparable service to the citizens of, say, Nimmo Bay BC, it fell to the government to insist our telecommunications companies who want the business in Canada’s easy-to-serve regions, also serve the remote regions that can’t even be reached by car.
It’s important to acknowledge that if we eliminate all communications regulatory intervention by the government, we are without a doubt condemning the outer reaches of our country to substantially impaired communications service. It is simply not profitable to serve some areas. Limiting service in these areas would disproportionately impact Indigenous people, who are already substantially underserved for utilities, shipping and other necessities of life.
To extend this concept to broadcasting, it is prohibitively expensive and not particularly lucrative to run a news operation. Most news organizations in Canada have been incorporated under telecommunications companies with a broader mandate. The content-producing arms of these companies (think CTV as part of Bell) are not as profitable as the other business units, however they provide value-added services these large companies wish to have. (e.g.: rights to broadcast sports games, etc)
Under the Broadcasting Act, the government established the CBC, because of its belief that every Canadian has a right to local news in both official languages. Regardless of your personal feelings on the CBC’s execution of this mandate, it’s again important to acknowledge that its existence is what is keeping news coverage in some of Canada’s remote centres, particularly the North, as well as French language service in centres where the francophone community is small.
The Act also tried to incent Canadians to turn to Canadian sources of news and entertainment, by establishing minimum percentage expectations for content that is Canadian. (CanCon)
This is where the opponents of market interference object. The Broadcasting Act, and the regulator that enforces it, the CRTC, say that CanCon rules provide much-needed exposure to Canadian artists who might otherwise be overshadowed by American acts.
For many years, (and arguably still today) the sheer volume of content, and the money available to produce it, made US programming very accessible and often more appealing to Canadian consumers. By forcing stations to play a certain amount of Canadian music, for example, it attempted to the level the playing field for artists at home.
Bill C-10
If a company like Netflix were to find the new regulations too onerous, I don’t see any mechanism that would stop it from ceasing operations in Canada.
The name of the Broadcasting Act itself gives an important clue to why its principles are in many ways outdated.
Much of what we consume is no longer broadcast over the airwaves at all, but “broadcast” to us online. We live in an on-demand world now, where we can choose news and entertainment not just from Canada and the US, but from anywhere in the world at the click of a button.
Bill C-10 sets out to include the internet in the Broadcasting Act. This isn’t an entirely foolish proposition. As it stands now, regulating the internet while maintaining individual freedoms has been challenging. Trying to control, for example, spam email has been a largely ineffective endeavour stemming from various piecemeal legislation.
Placing the internet more formally under the purview of the CRTC ostensibly offers some protection to Canadians.
Or at least it would, if the CRTC met its obligations currently (it does not), and if the proposed changes to the Act were appropriately narrow in scope (they are not).
Government Overreach
For example, the Bill sets out to regulate corporate content or large organization content, but not individual social media. Initially, this appeared to be a lack of understanding of modern communications.
Individuals can have hundreds of millions of viewers. Virtually everyone agrees we don’t want the legislation infringing on private content posted for private audiences. However, if the goal is to provide boundaries for powerful media organizations, this won’t cut it. For better or worse, an individual Youtuber with an audience of 100 million subscribers is a powerful media organization.
In recent days, the government has come out and said they are potentially going to include individuals with mass audiences under certain circumstances. This is hardly better. That would mean the Commission can apparently decide on an ad-hoc basis who is encompassed by the Act and who is not.
This has changed again since this morning, leaving communications from our government (pick a level, pick a location) once again clear as concrete.
Clause 20 of the proposed Bill insists large internet broadcasters have a license. The point of a license of course, is so that the CRTC has something it can take away if sanctions are required. One can see why the Commission would be anxious to extend this requirement to say, Netflix.
The proposed Bill would insist streaming services like Netflix prioritize Canadian content over that from other countries. It does not explain how this process would work, which leaves a lot of power in the hands of the unelected members of the CRTC.
If a company like Netflix were to find the new regulations too onerous, I don’t see any mechanism that would stop it from ceasing operations in Canada altogether.
Bill C-10 over-indexes on control and underachieves on choice for Canadian consumers. It meddles in issues that aren’t currently a problem, like what we watch and what is suggested we watch on streaming services. It doesn’t appropriately address areas that are currently a problem, like online hate, inappropriate data management, and misinformation.
Existing Legislation
Luckily we have existing legislation that could protect us from misinformation and online hate. Many people think “free speech” is protected in Canada as it is in the US. That’s incorrect.
Section 2 of the Charter provides Canadians with basic fundamental freedoms, including but not limited to freedom of expression. However that right is not inalienable. The Charter expressly notes that the government can limit any of these fundamental freedoms through other legislation, should sufficient necessity arise.
While that sounds ominous, by and large Canadians like it. These limitations are what helps us root out child pornography. They are what makes hate speech illegal. Possibly because the arbiter of these measures is the judicial branch, we have not seen widespread partisan abuse of these powers, regardless of who has been in power.
Unfortunately, as Canadians become more polarized, we are less likely to agree on what is a reasonable limit on freedom of expression, or even on what hate speech is.
So while legislation exists to appropriately protect Canadians from online content that is profoundly damaging, at the same time it’s online content that is in no small part to blame for the fact that we’re increasingly unable to agree on what that “appropriate content” is.
Data Dangers
It increases societal polarity. It radicalizes. It shapes the very beliefs of our kids through much more intrusive and addictive means than parents could even begin to compete with. And Bill C-10 won’t stop this.
Big internet companies are becoming increasingly adept at locking down our attention, using content that appeals to the dopamine centre of our brain. They do this through features like “suggested videos” and through the algorithms that lead certain accounts to be heavily featured in our social feeds.
They’ve gained this ability through accessing almost unlimited amounts of our personal information online. What is even more terrifying is that they also gather this information about our children, and use it to captivate their attention as well.
Some of the experts who pioneered the ability for data gathering to be used in this way are now speaking out about its danger. It increases societal polarity. It radicalizes. It shapes the very beliefs of our kids through much more intrusive and addictive means than parents could even begin to compete with.
And Bill C-10 won’t stop this. It will affect what you watch on Netflix, but it won’t stop your children from being served harmful media.
Solutions
A better way … is not by limiting consumers or regulating streamers, it’s by ensuring continued excellence in Canadian news and entertainment.
CanCon rules are not supposed to be about penalizing consumers for choosing non-Canadian media, or penalizing companies from other countries. They’re supposed to be about ensuring that Canadians are exposed to media produced here at home, and that this content isn’t drowned out.
Therefore, a better way to cultivate this exposure is not by limiting consumers or regulating streamers, it’s by ensuring continued excellence in Canadian news and entertainment. If we the electorate believe market intervention is appropriate here, tax breaks for producers and a more effective granting system for artists is the solution.
Canadian Content is more popular than ever, just ask Schitt’s Creek and The Weeknd. Both of those examples once depended on the Canadian government’s market intervention, but once they were established, they became worldwide phenomena their own right.
The other needed solution is around the unaddressed issues in Bill C-10. The biggest concern regarding internet content is not whether services need to be licensed. It’s stopping misinformation and harmful information like hate speech from proliferating online. Licensing does not guarantee this will happen. Further, the government is free to do this outside the CRTC, by simply enforcing legislation as it exists now.
The CRTC and other quasi-governmental bodies have been complicit in the erosion of Canadian media up to this point. They have failed. Canada has some of the oldest antitrust legislation in the Western world, yet all the major newspapers in most of our major cities are owned by one entity, Postmedia. And an activist entity at that.
So the CRTC is abrogating its duty already. We should not expect this Commission to have the will to undertake the protections that are needed, let alone adjudicate vague legislation that is unnecessary, like Bill C-10.
Protecting Canadians
If new legislation is required, it surrounds what information internet companies are allowed to collect about you and me and our kids, and what they’re allowed to do with it.
Bill C-10 fails to address some of the most worrying aspects of Big Tech’s ownership of our data, but it does allow the CRTC to increase its own access to our data, through demands that tech companies share their algorithm information and unspecified other information with the Commission.
There are certainly adjustments that need to be made to our current Broadcasting Act. The world is changing, Canadian media is changing, consumer tastes are changing and technology is changing. But as it’s written, Bill C-10 is an impenetrable tangle of government overreach and misguided attempts to modernize.
It will fail to enact the change it proclaims we require, but first, it will piss off a lot of Canadians.
