The fly in the ointment of Bill C-11

    Jun 15, 2022

    OTTAWA—Is there a bill that Pablo Rodriguez has not mashed up? One would think his second time around as Heritage minister—as well as watching his colleague, Steven Guilbeault, be reduced to a political punchline after his stint at Heritage—would give him a clue. 

    Seems like Heritage is the place where underperformers reign before failing up, Mélanie Joly notwithstanding. 

    The government has reintroduced last year’s disastrous broadcasting bill (then known as C-10), as Bill C-11, or the Online Streaming Act. Back then, I asked a fundamental question in this paper: what is a broadcaster? Recalling the controversy around C-10, the Conservatives jumped on a deleted portion of the bill, Section 4.1, which specifically stated that the act does not apply to individuals who upload content to various social platforms. Well then, to whom does it apply? This bill goes through a lot of mumbo jumbo, but still fails to answer that question. 

    In other words, the new broadcasting bill still does not address core problems of the digital experience. In fact, it reveals further issues with trying to control the internet: Canadian content and government-imposed manipulation of algorithms. Also, we must be aware that the government is updating a suite of digitally centred legislation, including on online harms, privacy, and compensating news organizations for online distribution (Bill C-18, the Online News Act). Bill C-11 can be thought of as a foundational piece of legislation from which all future digital legislation is to be based. 

    Canadian content rules, dreamed up in the 1970s when there was little programming compared to today, were incorporated and imposed as part of the original Broadcasting Act (1991). The breakdown is as follows: radio airplay has a 40 per cent CanCon quota, broadcast television is 55 per cent yearly or 50 per cent daily, and the CBC, specifically, has a 60 per cent quota. These quotas were erected without the current context of algorithms, or on-demand and streaming content, much less cross-border intellectual properties, influencer revenue models, and the integration of the media market. And that’s the fly in the ointment: the Liberals have done nothing to redefine CanCon, and, like knowing what a broadcaster is in this new context, this is a fundamental question. It’s a question Heritage Minister Rodriguez refuses to answer, instead insisting that these wrinkles will be ironed out after the legislation is passed. Who here trusts that Minister Rodriguez will represent the interests of Canadian content creators who aren’t in Quebec, i.e. who trusts that Rodriguez will be fair and equitable? 

    As an example of how complex the CanCon question is, let’s take a look at Margaret Atwood’s book, The Handmaid’s Tale, which is now a television show on Hulu (to complicate matters more, Hulu is only streamed to U.S. customers). It’s shot in Hamilton and Toronto. This is not considered Canadian content according to the highly restrictive rules of CanCon quotas.

    Without going into detail, there is a point system: if the director is Canadian, the screenwriters Canadian, those produce points that are then added up to a score out of 10. Great, right? Nope. For some reason, Netflix’s Stranger Things and Killing Eve are considered CanCon. The Globe and Mail comments: “The only thing Canadian about Stranger Things is actor Finn Wolfhard, who plays the lovestruck Mike Wheeler. Killing Eve was created for BBC America by the brilliant British actor-writer Phoebe Waller-Bridge.”

    The second issue is the “discoverability” of Canadian content, i.e. algorithms. This bill is intended to increase the amount of Canadian content that pops up as recommendations for further viewing. And the implementation of those regulations could affect what we see online, depending on how that content is served to us. Of course, the implementation will be left to digital platforms, however the regulation rests with the Canada Radio-television and Telecommunications Commission (CRTC). OpenMedia, a community organization that works to keep the internet open, points out: “Under Bill C-11 platforms must also make CanCon ‘discoverable’ by filling our feeds and search results with a mandatory quota of official CanCon content, or face stiff financial penalties from the CRTC.” 

    Who asked for this? 

    All of this is to be managed by the CRTC. This is the same CRTC that, in 2011, “recently approved the scheme to allow large service providers to charge heavy internet users more,” as reported by The Canadian Press. Those who used the internet for online gaming and watching movies were to pay more for their internet than those who used the internet to check their email, all in a country with one of the most expensive internet services in the world. This was proposed by Bell and Rogers, and the CRTC picked up that steaming pile and ran with it. Suffice it to say they had to back off, but the CRTC has never fully recovered from being seen as an agent of legacy media players, intended to screw over the public for their friends. These optics were confirmed when the chair of the CRTC, Ian Scott, was caught canoodling with his Bell Media bud, CEO Mirko Bibic. This meeting was conveniently around the time the CRTC granted an appeal of the big telecoms and reversed its 2019 decision that found that wholesale rates were too high and should be reduced. This became especially material during the pandemic when public services went online, exposing internet (broadband) inequities. To think Scott doubled down on the obviously problematic nepotism says everything about the integrity of the CRTC and this Liberal government. 

    And we wonder why we pay so much for what should be a public utility. We’re being screwed over by the CRTC and this government just expanded its power and influence. No wonder people are so angry at the perversion of “the rules” for the rich and powerful, in general. This process has already been exposed as corrupt, now watch the two-step the Liberals do to hide that fact. 

    Erica Ifill is a co-host of the Bad+Bitchy podcast.