On April 27, 2023, the Canadian Parliament passed into law Bill C-11 (Bill), also referred to as the Online Streaming Act (Act). The Act, which has attracted considerable attention, implements several consequential amendments to Canada's Broadcasting Act.
KEY AMENDMENTS
1. Expanded Scope. The Act introduces a new
category of broadcasting undertakings called "online
undertakings," which will encompass a broad range of
businesses such as video and music streaming service providers and
social media platforms, thereby subjecting these online
undertakings to regulation and oversight by the Canadian
Radio-television and Telecommunications Commission (CRTC).
2. New Regulatory Powers. The Act provides the
CRTC with broad new order- and regulation-making powers applicable
to all broadcasting undertakings. To further the broadcasting
policy objectives, section 9.1 sets out the conditions the CRTC can
impose on broadcasting undertakings, including: obliging
undertakings register with the CRTC, compelling them to provide any
financial or commercial data the CRTC considers necessary for the
administration of the Act, and requiring that they make certain
Canadian programs "discoverable" through algorithmic
modifications. Section 11.1 allows the CRTC to make orders or
regulations "respecting expenditures to be made by persons
carrying on broadcasting undertakings" so long as these
expenditures are to support Canadian content, Canadian creators, or
broadcasters of exceptional importance.
3. Modernized Broadcasting Policy Objectives. The
Act modernizes the stated broadcasting policy objectives that
inform the application of the Broadcasting Act.
4. Enforcement. Under the current Broadcasting
Act, the CRTC's main enforcement tool in the case of
non-compliance is to revoke a licence. The amended act establishes
an administrative monetary penalty scheme with a maximum penalty of
C$10-million for a first violation and C$15-million for each
subsequent violation.
IMPLEMENTATION TIMELINES
At this time, the effects that the Act will have on Canada's
broadcasting landscape remain unclear, because the Act must be
implemented by regulation through the CRTC. On April 27, 2023, the
CRTC issued a public statement indicating that it will
release a detailed plan and launch the first public consultations
related to the Act in short order.
Additionally, the Governor in Council will issue a policy direction
of broad application under section 7 of the Broadcasting
Act, directing how the CRTC should wield its new regulatory
powers. The government's draft policy direction provides the CRTC with
nine months to implement a regulatory framework and establish a
charges and expenditures scheme, and a two-year timeline to
implement the entire policy direction. Furthermore, it is important
to consider that the CRTC now has all requisite powers to initiate
consultation and begin regulating the broadcasting system; it does
not have to wait for the policy direction. The CRTC noted in its
public statement that it will modify its approach in light of any
future policy direction.
Entities who may become subject to regulation under this Act should
consider these timelines and prepare for public consultation on the
policy direction and the CRTC's regulatory approach.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.