BILL C-11, THE Online Streaming Act, rightly raises important questions about transparency and trust — but not necessarily the ones that its critics would have you think.
I believe that C-11 is generally a good law that does what it purports to do: modernize the Broadcasting Act to ensure that online streamers and platforms play by the same rules as Canadian broadcasters do when it comes to investing in and promoting Canadian content. The bill supports Canadian jobs and Canadian creative voices in a space that is dominated by foreign Big Tech firms and a tsunami of content from the massive American market.
C-11 does this by continuing the current two-part regulatory structure under the Broadcasting Act. The act itself sets out a series of policy objectives, including that the Canadian broadcasting system should “serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada.” The CRTC is then empowered to implement those objectives, which it does, setting specific rules —including exemptions where appropriate — following an open consultation process.
This two-part approach is quite intentional. Delegating regulation to an arm’s-length body like the CRTC reduces the possibility of political interference in broadcasting regulation, something that’s critical to do in a democratic society. The CRTC has been recognized by the courts as a specialized expert body that has sector-specific knowledge the average parliamentarian simply doesn’t. And the CRTC can move more quickly than Parliament to adjust regulation as circumstances change. These are all good things.
Yet this structure has resulted in criticisms that C-11 basically “leaves everything up to the CRTC.” The argument goes that, rather than specifying exactly what will be regulated and how, C-11 represents a “just trust the CRTC” approach.
Bill C-11 does no such thing. Section 3 sets out cultural-policy objectives for the CRTC to follow. Section 5 sets out a regulatory approach, including guidance on not regulating when doing so wouldn’t contribute in a material manner to the implementation of those policy objectives. The act and the CRTC are subject to oversight by courts of law. By my count, C-11 consists of 38 pages and more than 12,000 words of not “just trusting” the CRTC.
At the same time, it is true that C-11 gives the CRTC discretion to craft detailed regulation. Here, trust does play a role, as it does with all our democratic institutions. It presumes reasonable trust in the law and in a consultative process. In particular, the CRTC has Rules of Practice and Procedure that provide a kind of due process for regulatory decision-making. Canadians who want to participate in this process can do so by making their views known. What you can trust is that your views will be heard by the CRTC.
The alternative to an open, publicly accountable process like this is, perhaps ironically, the very blind trust that C-11’s critics purport to warn us against: blind trust in corporations. Where is the comparable consultation process for the activities of Netflix or YouTube? C-11 will allow the CRTC to gather data from tech platforms, making more information available to the public. What right of access do Canadians have to such data otherwise?
In the absence of C-11, it seems, we are asked to “just trust Big Tech.” And what has that gotten us, other than the likes of the Cambridge Analytica scandal? What an alternative.
Note: This column by Neal McDougall originally appeared on TVO.org’s website on June 20 and is republished with permission. McDougall is the acting co-executive director and director of policy of the Writers Guild of Canada. Profile photo is also from TVO.
