This article originally appeared in the Globe and Mail.
By Peter Menzies, October 4, 2023
Panic has poured through the Canadian podcast world following a startling decision by the Canadian Radio-television and Telecommunications Commission (CRTC) – and for good reason.
Podcasters, both foreign and domestic, are now under the control of the federal communications regulator.
On Friday, the CRTC issued the first of its decisions related to its new powers under the Online Streaming Act (Bill C-11). These were primarily about establishing the size of the playing field and how many players will be on it. It decided to go big.
For instance, while Bill C-11 was always promoted by its political backers as focused on getting “money from web giants” such as Disney and Netflix into funds for approved Canadian film and television production, it turns out that any streaming company with revenue of more than $10-million is now a “web giant” and in scope.
Online news and porn producers have also been brought into its scope because the CRTC says it would be unfair to leave the online content creators unregulated while regulating traditional, licensed broadcasters. Never mind that people in the licensed world accept restrictions voluntarily in exchange for numerous benefits and protections – the CRTC appears firm in the belief the internet is little more than a new-fangled cable network, and it will proceed to regulate those who receive no benefits or protections from it, as if they do.
What caught a lot of social-media attention right out of the gate, though, was its decision to bring podcasts into the game.
Legislation protects podcast creators from regulation, but they are nothing if not a crafty lot on the seventh floor of the CRTC’s headquarters in Gatineau. While acknowledging they can’t directly regulate the likes of Althia Raj, Joe Rogan, Jordan Peterson, J.J. McCullough and others, they found a way to get others to do it for them.
The first step was to decide that podcasts fit the CRTC’s definition of programming because “they are comprised of sounds intended to inform, enlighten or entertain.”
And then they decided that because podcasts are programming, anyone who carries or transmits podcasts fits the regulatory definition of a broadcaster and will have to register with the commission.
This, it said, was necessary so that it could understand – and this is breathtaking – whether the podcasting world is in compliance with the expectations of the Broadcasting Act.
It is clear, therefore, that the CRTC will be regulating podcasting in Canada – not directly, but, as long predicted by Bill C-11′s critics and vehemently denied by its proponents, via the platforms that carry them.
And there is every reason to expect that, having made clear its intention to treat the licensed and unlicensed world similarly, the commission will eventually move to impose the same content standards and expectations it now imposes on television and radio onto the world of podcasting.
As former CRTC commissioner Timothy Denton put it on X (formerly Twitter): “Reasonable people may find that the CRTC is only trying to register platforms, not regulate content,” he wrote. “The underlying statute makes all video into ‘broadcasting,’ hence regulated. The regulatory anaconda will squeeze slowly, but will squeeze tightly. What can be regulated will be.”
That probably means creating an expectation that those “broadcasters” transmitting podcasts will have to impose standards similar to those that currently govern television and radio via the Canadian Broadcast Standards Council (CBSC) and its codes of conduct. To clarify where this is going, CBSC decisions can, ultimately, be appealed to the CRTC, which, as we learned in its ruling against Radio-Canada for permitting use of the N-word, is disposed to act as a censor.
The next big impact is likely that there will be rules imposed that create a hierarchy among podcasts. There’s a good chance providers will have to adjust their algorithms to make CRTC-approved podcasts more likely to pop up on users’ feeds than unapproved and foreign podcasts.
So expect more online visibility for BIPOC, LGBTQ and other certified Canadian content podcasters, and less for foreigners and domestic creators who refuse to seek the CRTC’s seal of approval.
Podcasters and their guests will probably still be free to speak their minds however they wish, but those who chose to do so will be limited to carriage only by companies with earnings of less than $10-million.
As for those companies who will register as “broadcasters” of podcasts, some may decide – as Facebook has done with news – that the regulatory risk of platforming podcasts in Canada just isn’t worth it.
Peter Menzies is a senior fellow with the Macdonald-Laurier Institute, a former publisher of the Calgary Herald and a previous vice-chair of the CRTC.