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Bill C-10: Amendment removes social media exemption, but users and their content remain exempted


Clause by clause process inches along

By Denis Carmel

OTTAWA – At the outset of the clause by-clause revisions of Bill C-10 on April 19, Standing Committee on Canadian Heritage chair Liberal MP, Scott Simms set the tone: “Buckle up, folks. This is the fundamental core of parliamentary democracy at its best. It’s going to be an exciting time—so exciting that we’ll probably sell the story rights to Netflix.”

Of course, we’re not sure the big streamer largely at the heart of some of these amendments wants to buy that option…

The very first amendment to the Bill was introduced by the Green Party and it triggered a discussion that set the tone of the confusion around some issues. The party’s amendment looked to define the community elements that should be added to the Bill, which are presently absent.

“Community element” means the participation of members of the community “in the non-profit content production of community media in the language of their choice, as well as in the day-to-day operations and administration of community media,” read the amendment proposed by Paul Manly, Green Party MP for Nanaimo-Ladysmith.

Well, the rest of the committee had a problem with the notion of non-profit, and that reference was removed by a Liberal sub-amendment after a discussion where some members talked about their own experience on the matter.

The discussion, however, came back around during the following meeting when the same Green member proposed the broadcasting policy objective in the Act, Section 3, include the notion of community elements and again under the notion of non-profit. The committee, however, voted it down because it would exclude the community channels still owned and operated by Canadian cable providers.

Because they are owned and run by for-profit carriers who divert revenues from pay-TV to local channels, no one should worry for cable community channels say those in the much more fragile non-profit community media side of the broadcasting industry, which wants protection under the Broadcasting Act because of the roles they fill in their communities.

Regulating social media?

On Friday, April 23, the government, through the voice of MP Julie Dabrusin, parliamentary secretary of the Minister of Canadian Heritage decided to remove Bill C-10’s section 4.1, which reads: “This Act does not apply in respect of (a) programs that are uploaded to an online undertaking that provides a social media service by a user of the service — who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them — for transmission over the Internet and reception by other users of the service; and (b) online undertakings whose broadcasting consists only of such programs.”

This section “seemed to have created some confusion for people as to whether or not social media is excluded or included, so we recommend actually voting against 4.1. The reason I should be recommending that is we would be making clear that social media is included if they’re acting like a broadcaster,” said Dabrusin.

This sounds ominous and seems as though the government wants to regulate social media users’ content – until we remembered the committee already adopted a clause (2.1) in C-10 on April 19 which says: “A person who uses a social media service to upload programs for transmission over the Internet and reception by other users of the service — and who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them — does not, by the fact of that use, carry on a broadcasting undertaking for the purposes of this Act.”

So that clause already excludes the internet users like Heritage Minister Steven Guilbeault’s great-uncle and his YouTube cat videos, and to the committee’s eyes, rendered 4.1 duplicative.

“Where content uploaded by individual users is curated by a platform, and is deemed of significant impact, that platform, not the users, could be subject to the Broadcasting act. The Bill as it has been amended would continue to exempt individual users from being considered broadcasters.” – Department of Canadian Heritage

This issue has created much noise, triggering a news release from Conservative MP and committee member Alain Rayes saying the individual users were not exempted anymore, based on University of Ottawa professor Michael Geist’s reading of the Liberal’s intent. The National Post and other news outlets have since contributed to the outrage.

A Heritage Department spokesperson, stated by email to Cartt.ca: “The intention behind the removal of this clause (4.1) concerns notably the music streaming that is rendered possible by social media platforms, social media platforms that create playlists for example. Where content uploaded by individual users is curated by a platform, and is deemed of significant impact, that platform, not the users, could be subject to the Broadcasting act. The Bill as it has been amended would continue to exempt individual users from being considered broadcasters.”

Mandatory carriage

On Monday, April 26, the issue of mandatory carriage of Canadian specialty channels arose. An amendment was introduced by the Government seemingly in response to a Bloc amendment but “negating trade risks and taking into account good faith negotiations,” said Dabrusin in introducing the amendment.

These amendments were meant to give the CRTC the power to require online undertakings to carry certain channels, like CPAC, APTN and others which currently benefit from mandatory carriage on cable, satellite and IPTV pay-TV companies under the existing Act’s section 9(1)(h).

“Whether the CRTC should have the ability to require the terms and conditions of that contract arrangement, the amendment before you proposes that the CRTC not be granted that power, but rather that parties be required to negotiate in good faith and the CRTC be equipped to facilitate those negotiations where appropriate, and if ever you had a party not negotiate in good faith, the CRTC would have the ability to levy administrative monetary penalties against that party acting in bad faith,” explained Owen Ripley, director general, broadcasting, copyright and creative marketplace at Canadian Heritage.

“The goal here is to require those services to potentially carry certain Canadian services and require them to negotiate in good faith to come to a reasonable revenue-sharing agreement, which typically these days looks approximately fifty-fifty in most cases,” he went on.

This is probably not what the beneficiaries of mandatory carriage were hoping for.

The next meeting will be held on Friday and some will be held in the evening of the following week.

Our industry and COVID-19

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