As the terrible news of Bill C-11 becoming law sinks in, the CRTC has released a fact sheet that isn’t helping.
Late last month, Bill C-11 received royal assent, meaning that it has become law. In the process, the new law effectively abolished freedom of expression online, relegating it to a privilege that depends on how you express yourself which determines whether or not you are going to be heard. Within hours of the bill becoming law, lobbyists were immediately demanding that user generated content get regulated before the ink even dried. The calls demonstrated to observers that the veil was finally cast aside and the true intent was shown to the world that the whole point of Bill C-11 is to regulate user generated content, downranking anyone who hasn’t gotten an explicit blessing from the government.
The realization among the creative community is gradually setting in that their career may now have an expiration date. Faced with rules that would almost assuredly see them not recognize them as Canadian content despite being a Canadian citizen, some have actively contemplated leaving Canada altogether.
Of course, it is worth reiterating that these changes aren’t going to happen over night. There is still the policy direction that the government has to release, the CRTC consultations that have to take place, trade wars that will likely rage, and litigation that has to be settled. The order of these steps, and the respective timelines, are, of course, unclear. However, in recent days, we learned that the CRTC consultation aspect would receive the first developments. The CRTC announced that there will be consultations on the implementation of this bill. The details were sparse at the time, but there has been some more recent developments that is adding insight into where things appear to be heading. Spoiler: It’s exactly what we expected.
Firstly, the CRTC has released a plan, detailing how the consultation process looks in the foreseeable future. The plan is divided up into three phases. Phase 1 shows the following:
Public consultations (upcoming)
- Consultation on contributions to the Canadian broadcasting system: This consultation will consider who should contribute, how much and how.
- Consultation on registration of online streaming services: This consultation will consider which online streaming services will need to be registered with the CRTC.
- Consultation on exemption orders and basic conditions of service: This consultation will consider changes to orders under which online services have operated in Canada.
- There may be additional consultations, including on establishing a new fund to provide financial support for participation in CRTC proceedings by persons and groups representing the public interest.
This is the most immediate phase to take place over the next couple of months. The CRTC says this is for Spring of 2023. So, 3 consultations in all in this phase alone with possibly more to come.
Next, phase 2 which is set for Fall of 2023 consists of the following:
Public consultations
- Consultation on fee regulations: This consultation will review fees paid by broadcasters and how they should be extended to online undertakings.
So, this is the 4th consultation that takes place. In short, it’s a real slowdown on the consultation front.
Then we get into Winter of 2023-2024 which shows this:
Public consultations may include
Consultation on definitions of Canadian and Indigenous content: This consultation would review the definition of Canadian content and examine possible changes. Consultation on tools to support Canadian music and other audio content: This consultation would assess tools to support Canadian audio content. Consultation on programming and supports for video content: This consultation would assess tools to develop, support, and promote Canadian and Indigenous content on all platforms. Consultation on local markets access and competition: This consultation would evaluate market access, news and local programming, and competitive behaviours. Consultation on protecting Canadian consumers: This consultation would review ways to protect consumers and include broadcaster codes of conduct and mechanisms for complaints.
So, an additional 5 consultations totalling 9 in all with the possibility of more.
Finally, we get to phase three of this plan which shows this:
Targeting launch: Late 2024 (upcoming)
- This phase will focus on implementing policy decisions listed above. More on Phase 3 will be included in future updates of this plan.
So, all in all, just from the CRTC perspective, we are looking at a timeline where the legislation isn’t even being enforced until late next year.
It’s worth reiterating here that this is actually in ideal circumstances. It assumes that there won’t be litigation and trade wars that are sparked by all of this. Litigation, for sure, would slow things down. So, ultimately, when the switch is finally pulled, late 2024 is the ideal timeline. If litigation commences (which is a very safe bet, mind you), then you can easily tack on an additional year to this whole process. So, we are looking at 2025 at that point. All of this is consistent with what we have been saying all along. In February, we explicitly highlighted that the changes to the internet are not happening overnight. The CRTC here is proving our point.
While the timeline is out, we already are seeing signs that the CRTC has ultimately made up its mind on how it intends on regulating the internet. while releasing the plan, the CRTC released a so-called myths and facts sheet. When reading it, it really does little to stem criticisms of the bill.
So, for instance, we see the following:
Myth: The CRTC will regulate social media users and user content
Fact: We will only regulate broadcasters, broadcasting services and online streaming services that make programming available to the public.
Content posted by social media users will not be regulated. A person who uploads audio or video content to a social media platform is not a broadcaster under the modernized Broadcasting Act.
The goal of the modernized Broadcasting Act is to ensure that content made by Canadians and Indigenous creators is supported and promoted on traditional broadcasting services and online streaming services.
(emphasis mine)
So, here we see, for the millionth time, the promise that user generated content is totally not going to be regulated, but the government will be regulating platforms. Most digital first creators are going to read this and bang their heads on their desk for very good reason. This clearly demonstrates that the CRTC doesn’t understand how the internet works. Again, what is YouTube without content uploaded by users? A logo, a login, and a search bar that leads nowhere. It’s like saying that the government is not regulating houses, just everything beneath a roof, so don’t worry about it. The natural response is “WTF???”
Of course, this isn’t the only nonsense found in their myths and facts paper. Take, for instance, the following about algorithms:
Myth: The CRTC will regulate the algorithms of online streaming services
Fact: We will not regulate algorithms. We want to encourage innovation to make Canadian and Indigenous content easier to find.
We cannot order online streaming services to use specific algorithms to promote Canadian and Indigenous content. There are many other ways to make Canadian and Indigenous content easier to find, which could include promotional campaigns or featuring content on the service’s home page. We will explore these options as part of our consultations and look forward to hearing everyone’s views.
It’s hilarious to see the fact confirm the myth. Basically, the CRTC is saying that we aren’t going to make the algorithms change, but we want the algorithms to change. Like, did we even bother going over this before hitting “publish” in any of this? About the only thing truthful in this is the fact that the CRTC can’t order platforms to use a specific algorithm. That is actually accurate on a technical level. However, what the CRTC is trying to do is tell platforms to change their algorithms to achieve a specific outcome. That is meddling with the algorithm.
Of course, what is just as revealing is what is not covered by the myths and facts sheet. It’s the very important detail of what counts as “Canadian content” or “Cancon”. If you are under the false impression that by being Canadian, that makes your content “Cancon”, well, you’ve clearly never heard of the CAVCO system. Last year, we covered how my content, despite me being a Canadian, doesn’t count as “Canadian”. What determines what is and isn’t “Cancon” is a very archaic and outdated points system that assumes that your operation utilizes film crews, vacuum tubes and analogue editing techniques such as the use of scissors and film reels.
The short of it is that if you are a digital creator, you are unlikely to qualify. Only the largest operations on, say, YouTube, has a hope of qualifying in the first place. Even then, the process is going to be difficult and slow. It’s a system meant to be utilized by traditional broadcasters who are more adept to manipulating government rules and regulations rather than creating content people want to watch or listen to.
While the CRTC has said it would offer a consultation on these definitions, it’s worth knowing that this is a regulator that is much more firmly in the grasp of lobbyists who are trying to make it even harder to qualify as “Cancon”, not easier. After all, they want to have the entire internet world revolve around their content and no one elses. The last thing they want to see is those annoying uppity startups online getting in the way of their quest to regain their monopoly on audiences. So far, they are largely getting everything they want and the chances of that changing with that consultation is pretty is not all that great.
At any rate, you just can’t help but get a sinking feeling in all of this. The CRTC is, on the one hand, saying that they will consult, but on the other hand, is saying that their mind is already made up on a lot of issues. While a number of digital rights organizations are putting on a brave face in saying that they will fight this, it’s hard to see the outcome of this being good at all. It’s still a fight worth fighting, for sure, but especially considering how creators were ignored during the legislative process, it’s hard to see an outcome in this consultation process being any different.
(Hat tip: @Mgeist)
Drew Wilson on Twitter: @icecube85 and Facebook.
