Recently, the Canadian Press published a fact checking article on Bill C-11 (Online Streaming Act). Sadly, they got a lot wrong.
Critics of the Online Streaming Act (Bill C-11) have long been accused of pushing disinformation or being “paid shills” for “Big Tech”. Yet, when events unfold, it has become a common occurrence that critics are proven correct all along.
For instance, critics have long warned that the legislation would allow the platforms to meddle with the algorithms, potentially negatively impacting the performance of naturally successful content. Supporters countered that the legislation doesn’t affect user generated content, but rather, the platforms that content it happens to be on. After the legislation passed, supporters moved the goal posts and, instead, opted for “minimizing” algorithmic intervention on the part of the CRTC (the regulator overseeing this). This is far from the only instance this has happened, but it is a great one.
Recently, however, the Canadian Press published an article claiming that there is a lot of “confusion” on social media and their article implied that they are setting the record straight. It’s a very familiar charge for critics of the legislation that their criticisms are just “confused” and, unsurprisingly, the effort to discredit all criticisms of the legislation has fallen flat on its face.
Misleading Claims About What the Criticisms Are
The article in question leads with this misleading account of what the criticisms of the legislation are:
Confusion over Canada’s Online Streaming Act is running rampant on social media, clouding debate over what the legislation actually does.
Billionaire Elon Musk, podcaster Joe Rogan and other commentators have been sharing dubious interpretations of the law to their millions of combined followers.
Conservative Leader Pierre Poilievre has repeatedly called it a “censorship law” and promised to revoke it should he become prime minister.
The fact that many of the details are still to come through regulations and ongoing consultations is also prompting questions and fuelling debate.
This is basically an exercise in name dropping. The article tries to identify the least credible sources for criticisms and pretend that these are the sources of the criticisms. It is also an attempt to paint every critic with the same brush when the reality is very different.
Criticisms have come from a wide variety of sources. This includes from the world of academia (including Michael Geist and Dwayne Winseck), digital first creators (such as JJ McCullough, Morghan Fortier, Umami, Darcy Michael, Brittlestar, and Digital First Canada) and tech journalists (such as Mike Masnick and myself). The criticisms are wide ranging such as the bill would try to apply old broadcasting regulations surrounding Cancon on the internet when the law is clearly not compatible with the technology that is the internet. What’s more, the fear is that it would compel platforms to promote government certified “Cancon” over user generated content, limiting the reach of creators who don’t fit the Cancon mould (which is a vast majority of them).
What’s more, the push to have the results global sparks fears of platforms like YouTube leaving the country altogether which would be devastating to both creators and users alike.
Yet, those very reasonable arguments never actually made it in the lead paragraphs. Instead, all that is there is Joe Rogan, Elon Musk, and Pierre Poilivre as well as the charge that it’s a censorship bill. Ultimately, it shows that basic research into the criticisms of the legislation was clearly not done.
YouTube is Not a “Broadcaster”
The article then goes on to describe online services as “broadcasters”:
Traditional broadcasters have been part of this system for decades, contributing billions of dollars towards Canadian content. But broadcasting is no longer available just on TV, radio, cable and satellite.
Broadcasting now happens on streaming services such as Netflix, Amazon, YouTube and Apple. It’s why you no longer need a cable subscription — or even a television — to watch live talent competitions, newscasts and sporting events. It’s why you don’t need radio to listen to music or get local news.
This is the confusion that the legislation actually tries to promote and it’s wrongheaded thinking both in the legislation and in the Canadian Press article. First, let’s look up what a broadcaster is in the dictionary. We see the following:
noun
a person or thing that broadcasts.
a person or organization, as a network or station, that broadcasts radio or television programs.
The definition clearly falls out of the scope of what platforms, such as YouTube, are. What’s more, the very nature of these operations make it very clear that we’re talking about very different operations.
Lucky for you, I actually have experience in both traditional television and traditional radio. In both instances, the organization puts together a program of what is to be broadcast. For radio, song lists are prepared, advertisements are added (depending on the radio station. Sometimes this is a step, sometimes this is not). What’s more, time is set aside for the radio DJ to talk. Maybe some contests are put together and a phone number is often available for people to “phone in” and potentially have their comments put to air. This may be live, this may be recorded for later. Either way, the programming is transmitted out via radio airwaves.
In television, there are similar concepts at play. Programs are either put together or (more often) recorded from another signal. The program is split into “segments” and advertisements are added in for breaks. This can be a convoluted process depending on the set up because, in the instance of smaller television broadcasts, the station might get a signal from a larger station which requires the station to air some of the other stations advertisements as well as part of the agreement (some use the term “local avails” to describe ads that are locally aired after). There is, of course, live broadcasting which is typically a newscast. Anchor’s are generally live with news stories recorded and prepared for playback. Either way, this is put on a signal and transmitted over the airwaves.
Now, a platform is very different in nature. Anyone can upload a video onto this platform. A user can, in turn, watch that video any time they like. The platform can offer recommendations on what to view. The user can watch anything on their subscription or follow lists, but otherwise, it is up to the user on what to watch. The platform can insert ads into the video based on eligibility or copyright requirements. Regardless, it’s just a massive library for users to access and enjoy on their own terms. What’s more, such platforms also have search functionality, allowing users to find specific content they want to watch. Further, users can share that content on other platforms like though a link or in an embed such as the example below:
To paraphrase Sesame Street, one of these things is not like the other.
Now, there is a more recent feature on platforms like YouTube that allows for live streaming. Those video’s can then be turned into a Video on Demand (VoD) that can be accessed at any time after. Even then, though both TV and YouTube would technically be live, it’s still not the same thing. I can’t simply use a computer, log in to CBC News Network, and start broadcasting my own news. It doesn’t work that way. In fact, it would likely be illegal for me to do that (ala trespassing). However, on platforms, this is possible. What’s more, if one person is streaming, it doesn’t mean others can’t (which is not a feature available on the traditional airwaves). In fact, there are many people streaming at any given time and anyone can access those streams if they so choose.
Further, platforms have a very tiny roll in the content that is produced. It’s the users themselves who are producing and publishing that content almost exclusively. That’s not something that happens on a traditional broadcasting station.
Once again, one of these things is not like the other.
To try and say that video content consumed by others is all broadcasting is really contorting the definition of “broadcasting” here.
Major Elements Actually Have Been Defined
The article then goes on to say this:
What does the legislation do?
Right now, what exists is a framework that sets out the role and powers of Canada’s broadcasting regulator, the Canadian Radio-television and Telecommunications Commission, which operates at arm’s length from the government.
The bill says online broadcasters will be required to contribute to the creation, production and distribution of Canadian content. It also seeks to support Indigenous content and original French-language programming.
But key aspects of the regulations that will implement this law have yet to be defined, including criteria to determine what exactly is considered Canadian content, or the level of support companies will need to provide.
(emphasis mine)
Actually, the truth is that major aspects of this legislation have already been defined. A hugely controversial aspect is Section 4.2. In at least four separate instances, there were efforts to fix this section so as to make it clear that user generated content is not to be regulated in this legislation. In response, the Canadian government rejected these fixes all four times, making it crystal clear that the whole point of the legislation is, in fact, to regulate user generated content. The final version that received Royal Assent shows the following:
Regulations — programs to which this Act applies
4.2 (1) For the purposes of paragraph 4.1(2)(b), the Commission may make regulations prescribing programs in respect of which this Act applies, in a manner that is consistent with freedom of expression.
Matters
(2) In making regulations under subsection (1), the Commission shall consider the following matters:(a) the extent to which a program, uploaded to an online undertaking that provides a social media service, directly or indirectly generates revenues;
(b) the fact that such a program has been broadcast, in whole or in part, by a broadcasting undertaking that
(i) is required to be carried on under a licence, or
(ii) is required to be registered with the Commission but does not provide a social media service; and
(c) the fact that such a program has been assigned a unique identifier under an international standards system.
(emphasis mine)
There’s no vague concepts. There’s no things to be hashed out still. This is, set in stone, the law of the land now. There’s no going back on this. User generated content is to be regulated, end of story.
Another controversial aspect is the CRTC meddling with the algorithm. This is also set in stone the law of the land:
Restriction — computer algorithm or source code
(8) The Commission shall not make an order under paragraph (1)(e) that would require the use of a specific computer algorithm or source code.
(7) Paragraphs 3(1)(o) to (s) of the Act are replaced by the following:
[…]
(r) online undertakings shall clearly promote and recommend Canadian programming, in both official languages as well as in Indigenous languages, and ensure that any means of control of the programming generates results allowing its discovery;
(emphasis mine)
The law is clear, the purpose of the Act is to manipulate algorithms. The fig leaf on this is this idea that the CRTC can’t create a specific block of code and order platforms to implement this law. Instead, the CRTC is ordering platforms to create specific outcomes of algorithm recommendations. Then CRTC chair, Ian Scott, confirmed this aspect of the legislation.
So, again, there’s no debate left to be had. This is the law of the land. The CRTC is going to be in the business of meddling in the platforms algorithms to ensure that government certified speech (ala “Cancon”) is promoted over everyone else.
Yes, there are currently “consultations” going on at the CRTC (though they were constructed in such a way as to greatly limit public feedback to the handful of lobbyists that effectively wrote the bill in the first place), but it’s not so much to debate “key aspects of the regulations”, but rather, go into the specifics of how these “key aspects” are to work.
So, for example, what is the specific formula for which platforms must contribute financially to the so-called “Cancon” pool? How is that money supposed to be distributed to the traditional players? Why are digital first creators left out and why can’t they access that funding? Which platforms specifically are going to be impacted by these regulations? These are questions that are being sorted out right now through those consultations. It’s not so much the key aspect that algorithms are to be manipulated, but rather, in what ways specifically are they to be manipulated to favour legacy media companies at the expense of digital first creators?
Right now, the CRTC has basically gone ahead and set a deadline for platforms to register with the CRTC, so the process is essentially already starting. To imply that debate is only just beginning at this stage is actually very wrong.
You Can’t Regulate Platforms Without Regulating Users
There’s two questions and answers that directly contradict each other after:
Who will fall under the legislation?
Last week, the CRTC asked services that broadcast audio or video — meaning those that could potentially be regulated under the law — to register with them by Nov. 28, a requirement already in place for large cable companies.
The demand applies to companies that make more than $10 million in annual broadcasting revenues in Canada. The CRTC wants baseline information such as the business name and address, contact information and what kinds of broadcast services the company is offering online.
Such services include streaming services, social media services, subscription TV services that are available online, radio stations that livestream on the internet and services that offer podcasts.
The regulator went with a $10-million threshold because companies that large could be seen to have an impact on the Canadian broadcasting system.
What about content creators and social media?
The Liberal government and the CRTC have said they are not interested in content creators, whether they upload makeup tutorials, review restaurants, follow dance trends on TikTok or rage against the machine.
Draft policy issued by the government tells the CRTC to leave out social media users, including businesses, who upload content online.
The Department of Canadian Heritage said the act targets the kind of professional, licensed commercial content that is found in traditional broadcasting, such as TV and radio.
It could affect social-media companies. The CRTC says that depends on whether they broadcast licensed content. For example, people who upload videos on YouTube will not be regulated, but YouTube could potentially be regulated for its commercial content.
The regulator says it recognizes that the vast majority of social-media networks do not act as broadcasters, meaning the CRTC would have no input or control over how they work.
This is just straight up sloppy journalism where whoever wrote this just takes the government at its word without any fact checking at all.
First of all, the law is very clear that if content uploaded to social media platforms “directly or indirectly generates revenues”, then it is to be regulated. There is nothing to debate here, it is cut and dry the law of the land.
Second of all, what are platforms like YouTube without user generated content? A logo, a login link, and maybe some text. That’s it. Platforms like YouTube are predominantly user generated content. Is user generated content is supposed to be out of the bill, what content is the government trying to regulate when it comes to platforms like YouTube? Nothing, exactly. This section of the article implies that whoever wrote this has no idea what a social media platform even is.
If you don’t believe me on this point, then ask yourself this: what content is YouTube producing and is it a significant part of the platform at large? The answer is “no”. It allows others to upload to its platform. All YouTube is doing is organizing the content so that users can have a personalized experience after with other people’s content.
Ultimately, the law is trying to tell platforms to promote specific “Cancon” content typically produced by traditional broadcasters and producers or elements of the cultural elite at the expense of everyone else. There is very limited space for recommendations and the goal of the law is to ensure that those who are in the broadcasting system get preferential treatment. This while those who post user generated content get pushed to the back of the line. In fact, I even went to the extreme of offering a visualization of this impact. It is going to be devastating to those who produce user generated content because they won’t be able to get that organic growth on their video’s like they used to.
What’s more, those who do get promoted will likely get the equivalent of a review bomb because users will invariably find that content not relevant to their interests or poor quality (and mediocrity makes up a majority of the official designated “Cancon” pool of content in the first place). Users, simply put, are going to revolt against this. It’s not a matter of “if”, but “when” and things will get ugly as a result.
The doublespeak language is designed to be extremely misleading. You can’t artificially promote something without taking away the visibility of something else. This is just basic math we’re talking about here. Yes, you can technically say that the legislation doesn’t directly touch user generated content, however, you can force the platform to promote tonnes of other people’s content over top of that original content, essentially skipping the line and, as a result, degrade the performance of that user generated content. It’s more or less demotion by omission.
Adult Content and Video Games are To Be Determined
The article suggests that a decision was rendered regarding podcasts, video games, and adult content with this:
What about podcasts, adult content and video games?
The regulator says if something is considered trifling in terms of the overall broadcasting system, it may not even be considered by the law. For example, it does not view adult content and video games as currently affecting the system writ large.
Once again, the article is getting this wrong. The CRTC consultation is ongoing and one of the questions the CRTC asked is whether or not video games should be brought into this. It said that they are considering not including video games, but is leaving that open to the public to offer feedback. A final decision on that was not rendered.
The same is said for adult content. MindGeek, owner of PornHub, asked the CRTC to exclude adult content under the very understandable basis that porn does not significantly contribute to Canada’s cultural identity. On that basis, such content should be excluded from regulation. Supporters of the Online Streaming Act have described this request as “shocking” and have said that the company is somehow trying to skirt regulation and that adult content should be regulated in this way (I know, I don’t get it either). Either way, this is something that is to be determined.
As for podcasting, the article messed this part up in the article too:
Individual podcasters are not being asked to register, the CRTC says, and it cannot ask distributors of podcasts for any personal information about them. Companies that list a directory of podcasts won’t have to register, either.
The CRTC says it’s not aware of any individual in Canada who is making $10 million a year from podcasting. But even if a Canadian podcaster signed a $10-million deal, that person wouldn’t need to register and wouldn’t be regulated because only services, not users, are covered by the law.
Once again, this falls back to the problem of ‘platforms regulated, users not’ contradiction. What are podcasting services without user generated content? Not that much different than YouTube without user generated content. Podcasting services are being asked to manipulate their algorithms to promote government designated “Cancon”. As a result, the performance of how well their podcast is doing would be impacted as well. Podcasters are essentially in the same awful boat as video content creators where they are pushed down the queue in favour of government certified speech. Users would also be impacted in the same way.
Yes, the Legislation Will Stifle Freedom of Expression
The article ends on this very misleading note:
Will the law moderate content, censor people or control speech?
The law is not concerned with social media users — not even those who criticize the prime minister.
The CRTC says it respects Canadians’ right to freedom of expression, and people will still be able to listen to and watch the content of their choice.
Sen. Marc Gold, the Liberal government’s representative in the Senate, told the Senate during its marathon study of the bill that the legislation “will not interfere with or stifle the expression of Canadian voices.”
This is essentially the equivalent of saying that a lawmakers right to freedom of expression is not infringed if they are expected to only speak when no one else in the chamber is around and their microphone is turned off. What the government is trying to do is ghettoize speech that is not certified “Cancon” by a governmental body. That is actually unconstitutional. It’s the same as saying that newspapers are permitted to continue their operations as long as their papers are distributed in the insides of garbage cans on garbage collection days. Yes, it’s possible some might be able to read that content, but anyone in their right mind would look at such a regulation and conclude that this is an attempt to stifle speech. It’s the same impact with this law. It ghettoizes speech and orders platforms to favour content that the government deems to be worthy of promotion, regardless of user choice.
Conclusions
This is yet another bad article written in the mainstream press that gets even some of the most basic elements of the law and the nature of the debate wrong. It misidentifies what the criticisms are, the people who are making these criticisms, it fails to take into account what has been put in place with the text of the law, it fails to fact-check the governments word on things, it parrots misleading government statements as facts (even when those statements are demonstrably false), it misunderstands what is being discussed at the CRTC hearings, it disregards the very nature of what platforms are or how they actually operate, it doesn’t even take into account what broadcasting actually is, and shows repeatedly that whoever wrote that article can’t do basic research.
Ultimately, with so many critical errors, this is an article that really should be retracted due to critical factual errors and bad journalistic practices. Unfortunately, the media has, by and large, been more about pushing messaging rather than facts or even basic levels of fact checking, so intentionally lying to the public has become the general norm these days when it comes to things like the Online Streaming Act. While the Canadian Press accuses others of being confused, it has demonstrated that the only ones confused in this instance is the Canadian Press.
Drew Wilson on Twitter: @icecube85 and Facebook.
