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.
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.
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.