Bill C-11 is law now. But we still don’t know what it does.

CLIP You are listening to a Frequency podcast network production.

Jordan Heath Rawlings It is the biggest change to media and technology legislation in this country in decades, maybe ever.

CLIP A government bill set to overhaul Canadian broadcasting laws passed a vote in the Senate late today and is now law. The bill is known as C 11, also known as the Online Streaming Act.

Jordan Heath Rawlings Also known if you are the leader of the Conservative Party as the Online Censorship Act. But there are so many questions here, basic ones, what will it do? Who will it impact? What are the implications of this bill, which is now law? The answer to those is wait and see. You see, despite the fact that the legislation itself is done and passed, there are many questions which various branches of the government will have to answer before we know what our media landscape will look like, questions like what exactly counts as a digital streaming service. What exactly counts as Canadian content? Why don’t we already know the answer to those things by now? And why are conservatives worried about censorship?

CLIP The government wants political control over a news. And culture. And so you have this alliance of big government and big business ganging up on the customer.

Jordan Heath Rawlings Does this bill really give the government control over what you will see online? Look, this could be a fundamental reshaping of our broadcast laws that will profoundly impact the media you encounter. But until this law, which once again, just passed is actually interpreted and implemented, we won’t know like any of that. To which my final question is, That seems really backwards. What the hell? I’m Jordan Heath-Rawlings. This is the big story. Dr. Michael Geist is a law professor at the University of Ottawa where he holds the Canada Research Chair in internet and e-commerce law. He regularly writes about technology law issues and is one of this country’s leading experts in the area of digital policy. Hello, Michael.

Micheal Geist Hello.

Jordan Heath Rawlings Thanks for joining us today.

Micheal Geist Yeah, no, thanks so much for having me.

Jordan Heath Rawlings The first thing I want to ask you about, and, and I know this has years of history behind it now, but maybe take me back to the beginning of Bill C-11, the online streaming act that’s now law. What was the intended purpose of this bill? Why was it created? Right?

Micheal Geist And it’s a good place to start and it in some ways, we’d even go back to it’s predecessor, bill C 10, which was introduced and then ultimately died on the order paper with an election call. So this is an issue that’s been festering within, within Parliament now for the better part of two and a half years. And when it was initially proposed, and even still today, when the minister and the government talk about it, their emphasis is on the large streaming services, the Netflix and Disneys and Spotifys of the world, arguing that they ought to contribute to the Canadian system, to contribute to Canadian content, display more Canadian content, basically saying that this is what we’ve long done for television and radio, and that we ought to apply it to the large streaming services as well. And we’re gonna get into, uh, all the things that aren’t that, because I know that’s a real bone of contention with this bill and the impact it will have outside of that stated purpose, but maybe since we began here, what does the bill require those big digital streaming companies to do? You know, to be honest, we don’t. Totally know yet.

Jordan Heath Rawlings Hmm.

Micheal Geist It certainly will require them to contribute and the contributions may come in the form of providing money to help fund CanCan. It may come in the form of saying that some of their existing investments, because we know they spend already. Tens of millions of dollars on what internally the government describes as unofficial CanCon. It’s actually Canadian content in every way other than the fact that they happen to own it. And so it may be that we see what amounts a little more than an accounting change to say that those services, existing investments now will count for the purposes of Canadian content. And we may also find them be required to engage in what’s known as discoverability, try to make the Canadian content more findable on their services.

Jordan Heath-Rawlings Mm-hmm.

Micheal Geist That could mean changing their algorithm to recommend more Canadian content. It could mean a, a Canadian bar, uh, that displays various Canadian content alongside some of the other content. If you’re on a service like Netflix or Disney.

Jordan Heath-Rawlings I wanna ask you if we know the answer to this, and I know this is where it might get tricky, but what actually counts as a big digital streaming company anyway? Like, it’s very easy to hear that and say, Okay. I see that this applies to Netflix and Prime and Disney plus. What about smaller video sites? Spotify has video content. People watch videos on TikTok, on Facebook and all sorts of places. Where is the line?

Micheal Geist It, it’s gonna sound strange to talk about a law that’s been the subject of debate and review for two and a half years and continuously tell you that we don’t know. Yeah, the full answer, but we don’t know the full answer. Uh, rather incredibly, there are no thresholds in this legislation. In fact, it applies to all audio visual content anywhere. Uh, it’s anywhere in the world. Uh, and that’s audio, that’s video. Practically speaking, it’s any video or audio streaming service anywhere in the world with some Canadian subscribers is anomaly subject to this legislation. Now, there is an expectation that once the C R T RTC is tasked with establishing a bit more of a framework that they will set some thresholds or some conditions for who’s in or who’s out. But as it stands, it is quite literally everyone. In fact, at one point I had obtained an under accessed information, a document from the government where they highlighted workout videos and you know, small regional streaming services and acknowledged. That all of that content was technically subject to this legislation.

Jordan Heath-Rawlings Canada has a, is in a sense said its broadcast law applies to all internet, audio and visual content no matter where it happens to be. Okay. That said, what counts as Canadian content? You mentioned that this could be an accounting, uh, switch in one way or another, or it could lead to the creation of more. I was doing a little research around what would count, and I was kind of shocked to discover that Turning Red, which is a huge success, a Canadian written set in Toronto, like as a Canadian movie. Somehow wouldn’t have counted as CanCon towards Disney Plus.

Micheal Geist That’s right. And there are any number of productions, film and television productions, kids in the hall on Amazon ADE and Trailer Park Boys on Netflix. None of which count. Why in in those cases it’s likely because they are owned by foreign companies. Huh. And so what. Your listeners need to understand about Canadian content policy is that it’s really three policies in one. It’s a policy that is about jobs, about the economy, trying to ensure that there’s more jobs, but on that front, we know that in fact, there’s a robust amount of employment. In fact, government documents suggest that even if they did nothing, it wouldn’t have an impact on the amount of employment. In Canada, when they talk about how this legislation’s gonna create a lot more jobs, it’s just simply not the case. Internally, they know that we will run at. If not maximum employment at full employment with or without this kind of legislation. It’s also an intellectual property law. Who owns the, the productions that come out of Canada. And there they say, we want Canadians to own it. So even if it’s a Canadian story with all the various indices of Canada, if it’s not owned by a Canadian, then it doesn’t count. And then there’s this notion of what counts as a Canadian story. And so there are times, as you point out with Turning Red that we have stories that one would’ve thought count as a Canadian story. It don’t, and other instances, the example I’ve often used is a documentary called God I Love Trump, which had Roger Stone and an assortment of other figures from Trump world in it, practically no connection to Canada, but it ticked the right boxes and it was treated as Canadian content.

Jordan Heath-Rawlings That’s so fascinating because I don’t think that we see it that way when we think of what is traditionally Canadian content here. I am thinking as always of patio lanterns by Kim Mitchell, but you know, stuff like that that can come from a Canadian, I don’t know who owns the rights to that. I don’t think about who owns the rights to something. When I think about is this Canadian and I, I would bet you 95% of people in this country would think the same way.

Micheal Geist I think that’s right. And in fact I think that, you know, in many ways our politicians and those that have been lobbying for this legislation are perfectly happy to keep it that way. You know, the very often it’s, it’s more about wrapping themselves in the flag and say, you know, we need more of Canadian stories to be told. Yeah. Um, what they don’t often say is that even when those Canadian stories are being told, if the end of the day the person that owns that story happens to be not a Canadian, then we’re not going to have it count. And you know, I think this legislation. Is gonna open up the door to revisiting some of that. In fact, I think it c clearly will, both with respect to the large streaming services. I think in order for this legislation to work to sort of say, this is the Canadian system, but we want these large foreign players to be part of it, we’re gonna have to give on what it. Means to count as Canadian for can con purposes. And there’s gonna be, I think a bit of an element of be careful what you wish for there. For some of the larger Canadian players, I’m not convinced that it’s necessarily this big bonanza in new money. And I also think some of the changes that we see with respect to can con may actually change some who have been privileged under the old system and find that they’ve gotta compete in some new ways. And I should note that all of this is just, is in that larger curated basket of conventional film and television. It doesn’t even include what has been the most controversial part of this legislation, which is of course, the inclusion of user content and both its potential regulation and how we define that for the purposes of Canadian content.

Jordan Heath-Rawlings What do we know about, I mean, I, I gather from what you’ve told me already, that user created content basically anywhere qualifies under this bill. How could it be impacted by what we’re expecting to see?

Micheal Geist We have seen other countries enact similar kinds of laws. Europe, for example, has pretty extensive rules, but they distinguish between what they would call curated services and non curated services. So a curated service would be a service that decides what’s available on the platform. Let’s say it’s like a Disney, uh, or a Netflix. They decide what programs are available there and you. Can choose, of course, to watch them or not. And that’s in contrast to non curated platforms that are user driven content platforms like TikTok and and YouTube and Instagram, where they don’t decide what’s there. It’s users that are regularly uploading that stuff now. Nobody. Literally, nobody else tries to treat that kind of content in the same way as content that’s found on a platform like Netflix until now. Right. And the Bill C 11 does include user content. It excludes some to be sure, but it’s fairly clear and was even recently confirmed actually just over the weekend by the heritage minister Pablo Rodriguez, that he says it’s out. And then at the other hand, he says, well, when users are creating content that’s got music in the background, We think that if that’s excluded, that’s somehow a loophole. I think for millions of TikTok users who are creating videos with music in the background, they wouldn’t call themselves a loophole. They would say that they’re creating user content and would be pretty surprised to learn if they haven’t been following this debate that somehow they’re in this bucket where the C R T C will have certain regulatory powers. So they just have to create their content with patio lanterns in the background. Then essentially it, well, you know, and so the government is not gonna say that it has to be with patio lanterns or something from Russia or any of the other myriad of really great Canadian artists. What it is going to say is that the end result of their content may be either prioritized or deprioritized. Potentially either in Canada or even for some globally, depending on how the algorithm plays out with respect to what the C R T C requires. And that’s where, especially in the case of some of the large Canadian digital creators who’ve made a living out of this, who’ve found audiences both in Canada and even more around the world, they’re deeply concerned about legislation that somehow opens the door to potential regulation of their content in, in that way.

Jordan Heath-Rawlings You cover this stuff anywhere and everywhere. You’ve spent a ton of time on it. H how wild is it to you that they are attempting to do this, to get YouTube and TikTok and those folks to change their algorithms?

Micheal Geist Well, I think what’s really wild is that they keep saying they’re not doing it. Even though the legislation itself clearly, uh, clearly includes it, and then when asked about it, they continue to deny that it does that citing an example that is user content. It, it’s, it’s kind of enough to make your, your head spin. You know, I think at the end of the day, the platforms, you know, have tried to, to push back on this and we should be quite clear that. The provisions in the bill that deal with the content regulation side, the so-called discoverability, are separate from the provisions that deal with the contributions, and so it was perfectly open to the government to ensure that the TOS and YouTubes make certain financial contributions into the space. The C R T C would make the de the determination about how much that might be and ensure that the actual user content wouldn’t be regulated. And in fact there was a, a senate amendment that sought to do exactly that Yes, sought to expressly exclude this kind of content from regulation, but that wouldn’t have touched the contribution side. And I must say I found it exceptionally discouraging and a bit inexplicable that that offered up that kind of off-ramp, that opportunity to sort of ensure that yes, your, your use case where you wanna ensure this law applies, would still be there. The contributions would still be there. But you assuage the concerns of so many creators about the prospect of of having to either face that C R T C regulation or even at a minimum, have to somehow show up before the C R T C to make the case and put in the evidentiary record that the C R T C should take a hands-off approach, even if it has the powers to somehow step in.

Jordan Heath-Rawlings I’m glad you mentioned that. I wanted to ask you about amendments. Um, there were some of them, there have been a bunch, I guess, proposed as this thing has gone back and forth before it officially passed. What happened to them and, and why weren’t more of these accepted?

Micheal Geist You know that, that’s a great question and I wish I had a great answer for it. The, the amendment that mattered the most, I think at the end of the day, because that’s where there was the bulk of the hearings that took place at the Senate. And, and, and many may have heard that they say that this was studied more than any bill in history at the Senate, uh, focused on trying to find a way to ensure that the government had its use case covered. The use case that, uh, PEBLO Rodriguez, the heritage minister often raised was they said, well, listen, you know, if you listen to a song from the weekend on Spotify, You and they’re, and that, that’s subject to the law. Then if you listen to the same song gets posted on YouTube, it ought to apply in the same fashion.

Jordan Heath-Rawlings Mm-hmm.

Micheal Geist And so the goals of the, the goal of the senators, in this case, it was two independent senators, Paula Simons from Alberta, and Julie du Mavi, Duchenne from Quebec was to find a way to ensure that that remained in the law. But they quite clearly scoped out user content and I, and they had a provision that I think. Expressly did that, and yet when it went back to the house, we had the Heritage Minister Rodriguez say, no, this is a loophole. Although I think he gets the law wrong with respect to the claim, that there is a loophole. And frankly, even if there was a loophole, which there is not, it was open to the government to say, okay, let’s tweak this amendment to address this issue. And yet, instead, the government went ahead, rejected those amendments. And now what they’ve fallen back on is to say, well, we’re gonna issue a policy direction to the crtc. We’re gonna tell them how to interpret this legislation. Now, note that that’s not all that common. Uh, that’s, you need that when you haven’t provided the specificity in the first place that I think we’d otherwise expect in the legislation.

Jordan Heath-Rawlings Right.

Micheal Geist And the fact that he acknowledges that he needs a policy direction to provide more specificity, I think only serves to confirm that in fact, there is still an issue there. So it’s pretty clear that there are valid criticisms in terms of the scope and the specificity of this legislation, and I get those.

Jordan Heath-Rawlings What I wanna ask you about now is the conservative line of attack on this because Pierre Poly and others, uh, have been calling this an online censorship bill and saying the government is now engaging in censoring the internet. Why are they saying that and, and how much truth is or isn’t there to it?

Micheal Geist I think both sides have been been guilty of exaggerating the state of the law. The government when it says the stuff is out and the opposition when they claim that this is censorship about every, anything you can say online. When I had the chance to appear before the Senate on this bill, the, the way I positioned it for the senators was that this bill does not limit what people can say online. I mean, it simply doesn’t.

Jordan Heath-Rawlings Mm-hmm.

Micheal Geist But it does have the ability to influence their ability to be heard. And I do think that that issue around, that ability to be heard is an important one for people speaking. If you’ve got a podcast, say like this one, you want it to be heard. And if regulators come in and essentially override some of the choices that might otherwise be made, uh, it’s possible that you might benefit from that. Maybe you benefit from that locally, but you’re actually harmed globally. It’s possible that you’re immediately hurt by that. Hmm. Uh, but I do question whether it’s appropriate to have that kind of influence over this kind of content. It seems to me, as I say, that no other country seeks to do it, and I think the government knows it’s on thin ice, which is why it keeps insisting it’s not doing it. Even though the former chair of the C R T C, the various experts, and then ultimately the Senate came to the conclusion that it does. Okay, so this bill has passed, but as you have pointed out so thoroughly, there’s still so much that remains to be determined about the impact it will actually have.

Jordan Heath-Rawlings You mentioned a policy directive given to the C R T C, who defines all this stuff. What is CanCan? What is the streaming service, et cetera, et cetera, and. And how soon are they likely to do that?

Micheal Geist We are likely to see, I think in fairly short order, uh, draft policy direction. The government took the position this time round that they could not make it available in public before the bill was passed. Ironically, with Bill C 10 that predecessor to this legislation, they did make it available. Hmm. I I actually don’t think there was anything to stop them from, from providing a bit more specificity before it was passed. But they, they chose not to do that. Nevertheless, they will put that out. It will be open for a brief. Period for comment. And then ultimately, one would expect by the summer there will be a final version that goes to the C rtc, and that’s when the C R T C will kick into gear and they’ve gotta basically conduct hearings to decide these wide range of issues.

Jordan Heath-Rawlings Are there thresholds? What counts as can con? What counts as an appropriate contribution? How do we treat streamers as opposed to the conventional broadcasters? How do we treat user content?

Micheal Geist There’s a lot of issues. Many of these are the kinds of issues the. CR RTCs never dealt with before. Uh, and in many instances there may well be people who feel compelled to come forward before the CR RTC out of fear that if they don’t, then it’ll be a one-sided evidentiary record. It’ll just be those that showed up. Those tend to be the larger players who are accustomed to appearing before the C R T C and some of their creativity, their livelihood may be put at risk when all of that concludes and we’re talking about a year or more for all of that process, I would think to play out. I think it’s not unlikely that we see some appeals. Uh, this is an area that leaves almost everybody somewhat unhappy because they never get everything that they’re looking for. And so if we see appeals, we’re then looking at 20, 25, 20 26 before we see some pretty significant changes, which I know people say, well, you know, why am I worried about something that’s not gonna take effect for, for that long? But given that we know that, This legislation hadn’t been changed in decades. Once you’ve made these changes, they, they tend to be pretty difficult to undo. And this does represent a sea change in many ways, in the way that we regulate, uh, internet-based services and even more some internet-based content.

Jordan Heath-Rawlings So Michael, first of all, thank you for this incredibly thorough explanation. My last question is just given all of this and, and what you’ve described about the process, uh, that this will entail. Do we have any idea sitting here talking to each other, like what this bill will look like in practice on the ground?

Micheal Geist And will we have any idea before like 20 26, 20 27? I think it’s gonna take some time. I, I think before that we’ll get a sense of what the C R T C would like to see, and obviously through the policy direction a bit more on what the government would like to see. You know, I think that at the margins, in the best case, this will be some more smaller incremental changes where, CanCan might be more visible in some of those curated services and some of the stuff that those curated services, the Netflix and Disney’s are spending will count as as Canadian content. I suspect, quite frankly, that some of the more established CanCan ecosystem will be pretty unhappy if that’s all this means. But that opening is there and the notion that these companies haven’t been contributing has often been wildly. Overstate, they, they have been making significant payments into the system. They just haven’t been counted that way.

Jordan Heath-Rawlings Hmm.

Micheal Geist The, the bigger question though, is what happens, I think on the user side and, and you know, there’s a part of me that, that hopes that cooler heads prevail here, that the C R T C says that, you know, notwithstanding the powers that the government has given us, this is just something that we’re not interested in. But I have to say that I was struck that literally within minute, Of this legislation receiving Royal Ascent, there was at least one very large cultural group that said, Hey, game on. It’s now time for the C RTC to engage in established regulation, including on social media. And so I don’t think that we are going to see certain groups that have spent years lobbying for the government to pass this kind of legislation. And then behind the scenes lobbied the minister to reject even the reasonable compromise. They’re not gonna be content to step back and say, it just doesn’t make any sense to regulate this kind of content. I think they’re in for a penny in for a pound and will be looking for, for real regulation, uh, along the lines that the government has at least permitted based on the way that they’ve structured this legislation.

Jordan Heath Rawlings I guess we’ll find out, uh, in a year or two. > Michael, thank you so much for this.

Michael Geist Oh, thanks so much for having me. Jordan, Michael Geist of the University of Ottawa, Canada research chair in internet and e-commerce law. That was the big story. I think we qualify as can con I guess I will have to wait to find out, but I mean, I’m Canadian.

Jordan Heath Rawlings The company that owns this show is Canadian. I think we check the boxes. But who knows until the c r TC says. So. You can talk to us anytime by finding us on Twitter at the big story fpn. You can write to us via email hello at the big story podcast.ca, and you can call us and leave a voicemail. 4 1 6 9 3 5 5 9 3 5. If you’re Canadian, that counts as can con. I think we own it, that’s for sure. Anyway, you can find this podcast absolutely everywhere you get podcasts and maybe in more places as various online broadcasters go. Searching for more can con, I’ve beaten this horse to death now. I will stop. Thank you for listening. I’m Jordan Heath-Rawlings. We’ll talk tomorrow.