On September 29, 2023, the Canadian Radio-television and
Telecommunications Commission (CRTC) issued its first two decisions
regulating online broadcasting undertakings, which include video
and audio streaming services, and social media services. These
decisions will have important implications for many online
undertakings operating in Canada as they impose obligations to
register with the CRTC and comply with several conditions of
services, as outlined below.
The CRTC decisions are the result of two parallel public
consultation processes that ran from May 12, 2023 to July 12, 2023.
They are the first of several decisions the CRTC is expected to
issue as it works towards implementing certain changes to
Canada's Broadcasting Act enacted in April 2023 by the
Online Streaming Act, also known as Bill C-11. For
additional information on Bill C-11, please see our Blakes Bulletin: Parliament Enacts
Bill C-11 to Amend Canada's Broadcasting Act.
Broadcasting Regulatory Policy CRTC 2023-329 and Broadcasting Order CRTC 2023-330
Broadcasting Regulatory Policy CRTC
2023-329 issues the Online Undertakings Registration
Regulations (Registration Regulations) and exempts certain
classes of undertakings from the Registration Regulations through
Broadcasting Order 2023-330 (Exemption Order).
As a result, all entities operating an online undertaking in
Canada, except those subject to the Exemption Order discussed
below, must register with the CRTC by November 28, 2023,
using the CRTC's prescribed form and online submission process.
Registration is intended provide the CRTC with basic information
about online undertakings operating in Canada.
Pursuant to the Registration Regulations, operators of online
undertakings are required to submit:
- Their name and contact information
- Their place of incorporation and head office
- Their online undertakings' names, and
- A description of the broadcasting services offered by each online undertaking
Online undertakings who are required to register are also
required to submit certain prescribed financial information to the
CRTC by November 30, 2023.
The Exemption Order sets out which online undertakings are not
required to register with the CRTC. These are undertakings which
individually, or as part of a broadcasting ownership group, have
less than C$10-million in annual Canadian gross broadcasting
revenues, and undertakings whose single activity and purpose
consists of providing either video game services or audiobook
services.
Broadcasting Regulatory Policy CRTC 2023-331 and Broadcasting Order CRTC 2023-332
Broadcasting Regulatory Policy CRTC
2023-331 imposes conditions of service on certain online
undertakings operating in Canada. Prior to this decision, many
online undertakings operated under the light broadcasting
compliance framework set out in the CRTC's longstanding
Exemption order for digital media broadcasting
undertakings (DMEO). In this decision, the CRTC repealed the
DMEO and is subjecting online undertakings to a new regulatory
framework, as contemplated by Bill C-11. As part of this framework,
the CRTC is imposing obligations on online undertakings operating
in Canada relating to information gathering, undue preference and
undue disadvantage, making content available over the internet and
financial information filing.
Notably, the condition respecting information gathering applies to
all online undertakings operating in Canada regardless of annual
Canadian gross revenues, except undertakings whose single activity
and purpose consists of providing either video game services or
audiobook services. The remaining conditions of service do not
apply to online undertakings subject to the Exemption Order.
The condition of service related to undue preference and undue
disadvantage prohibits online undertakings from giving undue
preference to any person, including themselves, or subjecting any
person to undue disadvantage. The amended Broadcasting Act
provides the CRTC with the power to hold a proceeding in response
to an undue preference or undue disadvantage complaint involving an
online undertaking, where the onus is on the online undertaking to
prove the practice is not an undue preference or disadvantage. The
CRTC stated that it intends to hold future consultations on a
comprehensive framework with respect to the undue preference and
undue disadvantage rule as it applies to online undertakings.
What's next?
The decisions impose several new obligations on many online
undertakings operating in Canada, including an obligation to
register with the CRTC by November 28, 2023 and to file prescribed
financial information by November 30, 2023. Online undertakings
should carefully review these new obligations and begin compiling
the information required to complete any applicable filings by
their due date.
The CRTC is also continuing to consult on aspects of Canada's
new broadcasting framework, in accordance with its Regulatory Plan to Modernize Canada's
Broadcasting System. In November 2023, it will hold a
public hearing to address initial financial contributions by online
undertakings to support Canadian and Indigenous content. Over the
next year, the CRTC's regulatory plan contemplates
consultations on many other broadcasting issues, such as the
definition of Canadian and Indigenous content, tools for supporting
video and audio content, competition in the broadcasting sector and
consumer protection. Online undertakings should carefully monitor
the status of these consultations and consider submitting comments
to the CRTC on issues that may impact their Canadian
operations.
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