By Howard Law, author of MediaPolicy.ca and Canada vs. California: How Ottawa took on Netflix and the streaming giants (Lorimer, 2024)
Last week, Quebec’s culture minister Mathieu Lacombe slid a wild card into Prime Minister Mark Carney’s deck by tabling Bill 109 in the National Assembly.
The bill contemplates doing for Quebec exactly what the federal Online Streaming Act, Bill C-11, mandated the CRTC to do two years ago for all of Canada: regulate streaming platforms so that original French-language content reaches more French-speaking Canadians.
The Lacombe bill claims a constitutional jurisdiction it doesn’t have (until the Supreme Court tells us otherwise), a legislative space in broadcasting that belongs entirely to the federal government. It could provoke a direct confrontation with the Quebec-anchored federal Liberals.
The clash, if that is what it comes to, has been heading this way slowly but surely.
There is a wide consensus in Quebec that the state — at both the federal and provincial levels — should support the French language and French-language culture, increasingly by any means necessary.
Where the consumption of streaming video and audio content is concerned, those means include the usual efforts to boost financial support for making Canadian content, but also the idea that government should make the global streaming platforms like Netflix, Apple, Amazon Prime and Spotify showcase Canadian content. This showcasing goes by many names, but “access,” “discoverability,” “promotion,” “prominence” and “recommendation” is what is meant.
Where the rubber hits the road is whether governments or regulators will force the streamers to give Canadian content an extra push on home screens or personalized “for you” recommendations. The latter prospect triggers hyperventilation in some quarters about the state interfering with digital platforms’ algorithmic design.
Nevertheless, the Online Streaming Act was written up to give the CRTC the power to make this happen. The final version included an explicit amendment (engaging the “shall” word), sponsored by Bloc Quebecois MP Martin Champoux, to compel the streamers to recommend Canadian content in both English and French.
That statutory diktat on discoverability has been ignored so far. It did not find its way into the Liberal cabinet’s November 2023 instructions to the CRTC on what to emphasize in its implementation of C-11. And to date none of the commission’s notices of consultation betray a burning desire to set tough measures on discoverability, with regulation that impacts streamer algorithms being generally regarded as a taboo subject.
We don’t know what the CRTC will ultimately do about discoverability until next year when it moves on to completing the streamers’ detailed regulatory obligations. But so far there is hardly an encouraging word for those, especially in Quebec, who want something bold.
The canary in Canada’s discoverability coalmine is the drastic underconsumption of French-language music on streaming platforms, a stunning 4.6 per cent of the top 10,000 song streams in Quebec, a province that is 80 per cent native French speakers. Music creator groups like ASDIQ and APEM have been hollering about this since streaming Bill C-11 was introduced in the House of Commons in 2022.
Quebec Culture Minister Lacombe was quoted in Le Devoir saying that “the more digital technology advances, the more our culture declines.” It’s hard to argue otherwise.
So where the federal government and the CRTC tip toe, the CAQ’s Lacombe is prepared to blaze a path.
Lacombe introduced his bill just days before hosting an international meeting of francophonie culture ministers in Quebec City. The timing was no accident: he was looking for sovereign allies to match the streamers’ global reach and their inside track at the White House.
In the cards is a possible amendment to the United Nations’ Convention on the Protection and Promotion of the Diversity of Cultural Expressions to give greater legal weight and political momentum to “the right to discover” culture on digital platforms. It may be debated next month at UNESCO’s 20-year review of the convention.
And as far as timing goes, Lacombe’s CAQ government is running 12 points behind the Parti Quebecois in the polls, so there’s that.
An abbreviated version of the bill goes something like this:
The CAQ government wants to regulate a minimum library of original French-language content — of any national origin — made available by the streamers on their Canadian video and audio platforms.
Social media platforms like YouTube and TikTok might be excluded as “content sharing” platforms: the bill’s language on that point is very carefully crafted.
Also, the bill’s definition of “audio” streaming includes not just music but podcasts and books.
A key point: the minimum offerings of Canadian content (it’s pegged at up to 20 per cent in Europe for video but not audio) will be determined later by regulation.
With the streamers’ shelf space stocked with more French-language content, the bill will require concrete measures be taken by the streamers to make it “discoverable.” Again, how that’s to be done is to be determined later by regulation.
An interesting feature of the bill is that it’s not just the big streamers who will be obliged to promote French-language content. Regulations will also apply to manufacturers of television sets and Internet-streaming “connected devices” that are increasingly the portal for Canadians looking for content. The CRTC is currently mulling over whether it has jurisdiction over these devices, although not so long ago staff wrote to me to airily dismiss any notion of the commission’s power of oversight over “technology.”
The first line in Lacombe’s bill tells you a lot about the politics behind the bill: it amends the Quebec Charter of Rights to entrench the individual’s right to discover culture.
Then in the bill’s preamble, it is avowed that Quebec’s National Assembly is “the most legitimate judge” of the cultural content that French speakers need to access online. You can decode that as “more legitimate than the federal government.”
The federal government, Lacombe told La Presse, has let down Quebec on the discoverability of French-language content. “We can’t avoid passing a law like this by thinking Ottawa is doing it. There’s no unanimity in Ottawa on this. If the Conservatives had taken power, they would have repealed [the Online Streaming Act]. In Quebec City, we have that unanimity. All parties voted for this law I’m introducing. The future of Quebec culture must be decided in our capital.”
And if that wasn’t sufficiently blunt, Lacombe told Le Devoir, “there are no negotiations to be had with Ottawa. We are within our jurisdiction, so we legislate within our jurisdiction.”
That’s bravely said but not quite what the minister’s blue-ribbon committee headed by Louise Beaudoin told him. Her January 2024 report made a claim for provincial jurisdiction over streaming, regardless of federal jurisdiction and the Online Streaming Act.
Beaudoin recommended the negotiation of a bilateral agreement between Quebec City and Ottawa so that the former could step into the broadcasting space already occupied by the federal government, not unlike the existing bilateral agreement over the administration of federal immigration powers in Quebec (although in that case the province’s concurrent jurisdiction over immigration is entrenched in Constitution Act).
Lacombe offered less belligerence to the streamers whom he said he consulted prior to tabling the bill. They weren’t thrilled, he admitted, but seemed to respect the legitimacy of Quebec’s public policy interest. Striking a more conciliatory tone, he said he would work with the streamers and collaborate with the willing.
Conciliatory or not, Lacombe’s bill will engage the same foreign streamers who are fighting the CRTC’s implementation of the Online Streaming Act tooth and nail.
The streamers are litigating several of the commission’s early rulings, in particular the “initial basic contribution” of cash toward Canadian media funds.
The streamers may also feel they have U.S. President Donald Trump’s trade winds at their back and that conciliatory respect of Canada’s cultural sovereignty is for suckers.
The allies that Minister Lacombe is looking for may be closer to home than he thinks.
Photo of Quebec’s culture minister Mathieu Lacombe, via Facebook
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