An open letter to Prime Minister Justin Trudeau
Dear Prime Minister,
We are Canadian broadcasting, telecommunications, and entertainment lawyers, with decades of experience advising clients on the rules and regulations that govern the Canadian broadcasting system.
We feel compelled to write this open letter in an effort to dispel certain misleading statements that are being disseminated relating to Bill C-10, specifically how it could impact the way in which Canadians use the Internet.
The Broadcasting Act (the “Act”) was last updated three decades ago at a time when smartphones and Internet-based media streaming services like Netflix or media sharing platforms like YouTube didn’t even exist. As a result, the introduction of Bill C-10 was long overdue.
The primary purpose of the Bill is to recognize that a system that once consisted of programming services being transmitted over radio frequencies or through cable and satellite within a walled garden now increasingly involves Internet-based delivery by online media undertakings. The Bill seeks to ensure that online media content undertakings are included in the legislative framework and make an appropriate contribution to Canadian cultural policy.
The Bill will ensure, as a matter of competitive fairness, that services like YouTube and TikTok that derive significant revenues from Canadian audiences should contribute to cultural policy goals as their competitors do. However, some have argued that the Bill could limit Canadians’ access to the content of their choosing and pose a challenge to freedom of expression, which would violate the Charter of Rights and Freedoms (the “Charter”) and be unconstitutional. While these statements make good headlines, they are both factually and legally incorrect.
Proposed Section 4.1 of the Bill would have specifically removed social media services that only include programming uploaded by users of the service from the application of the Act. At the Standing Committee on Canadian Heritage this section was removed, but a proposal has been made to further amend the Bill to specifically limit the powers the Canadian Radio-television and Telecommunications Commission (the “Commission”) would have relating to such services.
Opponents of the Bill have argued that giving the Commission any powers over these services could amount to censorship. This is simply false and completely ignores the following:
- The Commission is not being given any powers to infringe on Canadians’ Charter rights. This is clearly outlined in the Department of Justice’s update to the Charter Statement and we agree with their conclusion;
- Bill C-10 would restrict the powers the Commission would have over social media services to: mandating financial contributions to support Canadian programming or the recovery of regulatory costs; discoverability, so Canadian creators can be more easily discovered and promoted online; registration, so the Commission knows which services are operating in Canada; and audit powers, to ensure compliance with all of these powers; and
- Users who upload content to these social media services would not be subject to the Act, as specified in proposed Section 2.1. Moreover, the Commission would not have the power to constrain the content on social media services, set program standards for these services or the proportion of programs on these services that must be Canadian.
Furthermore, the Commission itself is subject to the Charter and, as an additional protection, Section 2(3) of the Act already provides that the statute “shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings”. Consequently, any attempt by the Commission to implement policies inconsistent with freedom of expression could be immediately challenged on the basis of this section, as well as any Charter arguments that might be available.
It is essential that Bill C-10 moves forward quickly so that media streaming and media sharing services contribute fairly to the Canadian cultural sector.
Mark Gosine, QC
Christopher A. Taylor