By Ahmad Hathout
Before asking the CRTC to revisit a decision that ordered foreign streamers to increase their contribution to Canadian content, Culture Minister Marc Miller received a memorandum outlining scenarios after the Federal Court of Appeal rules on those streamers’ challenge to the initial base contribution decision from 2024.
The heavily redacted February memorandum, uploaded by Cartt here, summarizes what’s going on with the CRTC’s implementation of the Online Streaming Act, which forces the arms-length tribunal to directly regulate the online streamers.
But the memorandum focuses on what happens following the yet-to-be-released Federal Court of Appeal decision that will determine if the CRTC’s 2024 imposition of a five per cent base revenue contribution on foreign streamers should stand. All the scenarios are redacted.
The memorandum came three months before the CRTC increased the mandatory contribution to 15 per cent. Two weeks later, Miller, who expressed concern that prices for streaming services would increase as a result, ordered the CRTC to revisit the decision and said there would be a new policy direction that will force the commission to balance contribution flexibility and affordability for Canadians in its decisions.
The memorandum reminded the minister that the Broadcasting Act “constricts the influence of the minister and of the Governor in Council over regulatory decisions, generally limiting them to issuing broad directions or to an appeal function for stakeholders who are of the view that the CRTC has deviated from the objectives of the Acts.”
The office of the minister of Canadian Identity and Culture did not respond directly to a question about whether the memorandum influenced the culture minister’s decision, but provided the following:
“The Office of the Minister of Canadian Identity and Culture and Minister responsible for Official Languages regularly receives briefing notes prepared by the department. In this case, the note provided an update on an ongoing court case concerning a CRTC decision from August 2024. Following the CRTC’s latest decision in May, we announced our intention to develop a policy direction that better takes affordability for Canadians into account while providing greater flexibility for those contributing to the broadcasting system. We will move quickly and will have more to share in due course.”
Last year, Canadian Heritage studied a legal paper in the Canadian Bar Review that called federal jurisdiction over online streamers “suspect.” The author of that paper, Michael Ryan, told Cartt that streamers or someone “inevitably will” challenge the law on that basis. Former Department of Justice lawyer Philip Palmer told us after the story was published that, “Online streaming, Online News, and much internet-related federal legislation is open to question,” which would include online harms legislation introduced earlier this month.
It’s “an ongoing debate that may, one day, result in a serious challenge to the constitutional underpinnings of the Broadcasting Act as extended by successive Parliaments,” Palmer added.
