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What’s wrong with Bill C-11? An FAQ

Common questions and answers on Bill C-11

First published on April 4, 2022.


Canada’s House of Commons has passed Bill C-11, the Online Streaming Act – and the Senate is in the last stages of considering it before it becomes law. If you’re like a lot of people in Canada, you have questions about what this controversial bill will mean. How will it change your feeds and playlists on popular online platforms? Could it give the CRTC the power to regulate your personal posts? Below we answer these questions and more about what C-11 does and does not do. Bill C-11 is not the law in Canada yet, but there are just days left to speak out if you have concerns about it.

What is Bill C-11?

Will Bill C-11 give the CRTC the power to regulate your posts?

How will Bill C-11 affect the content you see online? 

How will Bill C-11 affect small and digital-first Canadian creators? 

Who is Bill C-11 actually for?

Will Bill C-11 “level the playing field” between streaming companies and legacy broadcasting companies?

Can Bill C-11 be fixed?


What is Bill C-11? 

  • Bill C-11, also known as the Online Streaming Act, is the updated version of Bill C-10, first introduced last year by former Canadian Heritage Minister Steven Guilbeault. Now spearheaded by current Heritage Minister Pablo Rodriguez, Bill C-11 partially fixes some of C-10’s faults, without fixing its core problems.

  •  Bill C-11 expands the Broadcasting Act that grants the CRTC regulatory powers over radio and television to cover all audiovisual content on the Internet, including content on platforms like Tik Tok, YouTube, Spotify, and podcast clients. 

  • Under Bill C-11, all platforms hosting audiovisual content that are not specifically excluded must make financial contributions to producing officially recognized “CanCon” - currently defined by a 1980s-era points system built around legacy media broadcast media

  • Does that system support Canadian storytelling? Unevenly at best. In recent years productions about US President Trump and the English Tudors have been greenlit as CanCon, while lavish productions of iconically Canadian stories like The Handmaid’s Tale and Turning Red have not met the standard.

  • Under Bill C-11 platforms must also make CanCon “discoverable” by filling our feeds and search results with a mandatory quota of official CanCon content, or face stiff financial penalties from the CRTC.

  • CanCon support currently largely excludes small and digital-first Canadian content creators. While Bill C-11 instructs the CRTC to review CanCon definitions, there is little guidance on how to do so, and no certainty for when it will complete its review, or whether digital creators will be appropriately included in future support.

Will Bill C-11 give the CRTC the power to regulate your posts?

  • The short answer – yes. Like Bill C-10, Bill C-11 gives the CRTC unprecedented regulatory authority to monitor all online audiovisual content. This power extends to penalizing content creators and platforms and through them, content creators that fail to comply. 

  • In Bill C-11, Section 4(1) establishes a limited exception from regulation for some types of online audiovisual content. Unfortunately, most audiovisual content will still be subject to CRTC regulation under the current draft of the bill. 

  • Why? Section 4.2(2) re-establishes CRTC regulation of most audiovisual content at the CRTC’s discretion, based on three criteria:

    • Whether the content generates revenue for someone, indirectly or directly;

    • Whether any part of the content has been broadcast on a more traditional broadcasting platform;

    • Whether the content has been assigned a “unique identifier” under any international standards system.

  • Guess what? Most content on the Internet generates revenue for someone, somewhere - and has unique identifiers tagged to content. As a result, most online audiovisual content is still at risk of being regulated and taxed by the CRTC.  The government is promising to apply further limitations to this power via a policy direction from Cabinet after C-11 passes. But a policy direction can be amended or replaced by a new direction at any time. This is not a binding defence of our content like restrictions within C-11 would be. This government or a future government could decide to use the CRTC’s new powers to start regulating or limiting user online posts, and it would all be entirely legal. 

How will Bill C-11 affect the content you see online? 

  • You’ll see less of the content you want most. According to the government, Bill C-11 will ‘increase visibility’ for some officially recognized Canadian content creators– but their tool for doing this is manipulating our playlists, feeds, and algorithmic recommendations.

  • This means that the CRTC will be picking winners and losers, forcing some officially recognized content ‘up’ in feeds and recommendations, while downranking or hiding other content we’d otherwise receive. 

  • Global content and content that best fits your search criteria as a platform’s algorithm understands it will become harder to find. The content you WANT to see that doesn’t fit the CRTC’s vision of CanCon is pushed down in your feed. 

But wait - doesn’t Bill C-11 ban the CRTC from forcing an algorithm on us?

Yes, but it doesn’t really matter. Under Section 9.1(8)  of Bill C-11, the government bars the CRTC from explicitly requiring platforms to use a particular algorithm or source code to construct their feeds.  

But the CRTC is requiring outcomes, and manipulating algorithms is the only way to achieve the government's requirement to promote official CanCon content first – CRTC chair Ian Scott has confirmed this during testimony. The CRTC will decide what our experience on platforms should look like, and it will be up to the platforms to decide how they will manipulate our feeds to get it done. In other words, if it looks like a duck, quacks like a duck, it's an (algorithm manipulating) duck. 

How will Bill C-11 affect small and digital-first Canadian creators? 

It’s worth remembering that Canadian digital creators are telling our cultural stories on new non-broadcast Internet platforms every day. As such, they should be equal recipients of any dedicated Canadian storytelling funding, but excluded from top-down broadcasting standards regulation. Bill C-11 does the opposite: applying outdated broadcasting standards and financial regulations to their work, without updating CanCon to support them financially. 

  • Many small digital creators may be regulated as producing ‘broadcast’ content: C-11 attempts to distinguish between “professional” and “amateur” content based on an unspecified quota for how much money a creator makes, how much money creators generate from a certain platform, what kind of brand deals creators are involved in, etc. As written, C-11’s baseline assumption is that small digital creators are not professional enough to be regulated. 

  • The new CanCon requirements will make it nearly impossible for independent creators to benefit from any financial or promotional gain from CanCon: Rather than having diverse voices on the Internet, C-11 would penalize the success that creators generate. Many independent creators post on multiple channels to enhance their discoverability and showcase their work to different demographic bases. This common practice would subject content creators to C-11 regulation. If their content does not meet CanCon requirements, their overall discoverability is affected on all channels they use for their work. 

  • Prove you’re “Canadian” enough or watch your views drop: Bill C-11 establishes a two-tier system for Canadian creators. Those who find algorithmically manipulating content to be categorized as CanCon will mean those creators who don't meet CanCon requirements will be pushed down on feeds, while those that do meet the requirements will be prioritized. 

  • But being “CanCon” isn’t necessarily a good thing: There’s a trap hidden in the new CanCon system. The CRTC can force content into our feeds – but it can’t force us to watch or enjoy it. When users are presented with content but don’t stick with it, though, algorithms understandably penalize that content and are less likely to show it to other users. Now consider that most content creators aren’t necessarily creating content for the purpose of it being “Canadian”, and their audience may be primarily made up of viewers in the U.S, EU, Asia and the rest of the world. For these creators, having their content presented to Canadian viewers that aren’t interested or engaged by it would be a net drag, hurting their ranking with their global audience.

Who is Bill C-11 actually for?

The real motive of the Online Streaming Act is simple; streaming platforms and creators on them are bringing in more and more revenue, and legacy media wants a piece of the pie. Legacy broadcasting media companies like Bell Media, Rogers and Corus Entertainment, have built themselves a comfortable and oligopolistic domestic market in Canada during the broadcasting era and dominated the media landscape for many decades. But the old narrow system isn’t working anymore. Television broadcast revenue has been in decline since 2014; young people don’t use cable TV or listen to radio. Rather than building competing online services on terms that attract people, those legacy media giants want a cut of the profits from streaming services that are increasingly popular in the 21st-century media market. Let’s take a quick trip through how the current system works, and how Bill C-11 will change it.

  • Under CanCon’s current point system for determining if something is ‘Canadian’ enough, a production must earn 6 out of 10 ‘points’, based on how many key creative functions are performed by Canadians. Broadcasting companies are forced to pay into the Canada Media Fund (CMF) for producing official CanCon – but receive much of that funding back for their CanCon productions.

  • Under Bill C-11, streaming companies like Netflix will also be forced to pay to produce CanCon - but will be ineligible to receive funding from the Canadian Media Fund, even when producing Canadian content.

  • Result? A direct money transfer from streaming platforms Canadians like, to legacy broadcast services we increasingly don’t. What a deal!  

  • C-11 vests regulatory power in the CRTC to dictate what will be regulated under the bill and what won’t. A revision to the definition of CanCon is supposedly coming, but the CRTC will set the terms of CanCon and exclude whatever content they choose. Right now, legacy media remains at the top of the food chain and independent creators, who the bill allegedly considers, are at the bottom.

  • It’s worth pointing out that the CRTC has long been a close friend of legacy media outlets like Bell; you might know that current CRTC commissioner Ian Scott even describes Bell CEO Mirko Bibic as a personal friend, and has recently been embroiled in controversy following a private beer meeting with him after a crucial CRTC decision that went against Bell’s interests.

Will Bill C-11 “level the playing field” between streaming companies and legacy broadcasting companies?

No – it will permanently tilt an already uneven playing field towards legacy media. Legacy media like Bell and Corus have a two-sided relationship with CanCon requirements and the Canada Media Fund (CMF); they have obligations and must pay into it, but they also draw on CMF funding. 

The government will expand payment obligations to a huge variety of online platforms, without granting them rights to draw on the CMF. The scope set out in an early government memo on C-11’s predecessor indicated a wide variety of niche and mainstream platforms they would target, from podcasts, sports services, video, etc. Meaning that the smaller streaming services you love, like BritBox, Pocket Casts, SportsNet Now, would all be subject to CRTC regulation, and potentially forced to figure out how to meet obligations to carry CanCon. As Bill C-11 was handed to the Senate, there is no Canadian revenue threshold or other limitation excluding some platforms from regulation - anyone and everyone could be included.

Smaller streaming services that aren’t able or willing to create CanCon-mandated content or pay into the CMF may choose to exclude themselves from the Canadian market altogether, blocking us from even accessing their content.  This would be a tremendous loss to Canadians looking for specialty programming, or diasporic communities in Canada looking for content from their home country.

Can Bill C-11 be fixed?

Bill C-11 starts from a fundamentally flawed view of the Internet and can’t be wholly separated from it. The Internet is simply nothing like a traditional broadcasting platform; we as users have many more options and choices, and heavy-handed government interference doesn’t belong. Our government should be respecting and enhancing that autonomy, not making decisions about the content we get to see and hear.

We believe the approach most in the public interest would be going back to the drawing board and writing new Internet-specific legislation that is not built on Canada’s outdated Broadcasting Act, and does not further empower an increasingly outdated CRTC. 

However, if the government can’t be dissuaded from cramming the whole Internet into a broadcast framework, four crucial changes will reduce Bill C-11’s potential harm:

  1. Clearly and explicitly exclude all user-uploaded content on all social media platforms from the CRTC’s regulation, by removing or amending Section 4.2(2) of Bill C-11;

  2. Drop any mandatory CanCon requirements for algorithmically generated feeds and search results. Promoted CanCon content should appear in areas of the platform users can opt into, not forced into every algorithm-assisted feed and playlist we create;

  3. Set a Canadian revenue threshold that clearly excludes small and niche foreign platforms from CRTC regulation;

  4. Reward digital-first creators on equal terms to legacy media. This means instructing the CRTC to develop new CanCon standards equally accessible to small digital creators as legacy media creators, and which are entirely neutral about the platforms they choose to produce for.

Promoting Canadian content and telling our stories is a worthy objective of government policy: but only if it respects our choices and supports all Canadian storytellers equally.

 

Looking to make an impact on this Bill? You can speak up and be heard with OpenMedia. Sign our petition to the Senate to demand they fix Bill C-11! #FixC11 


 


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