This article originally appeared in the Globe and Mail.
By Peter Menzies, February 20, 2023
Quebec’s plans to regulate streaming companies could trigger a jurisdictional battle and cause chaos in Canada’s online entertainment world.
Ever since the passage of the Online Streaming Act (Bill C-11) last year, the CRTC has been in a big rush to get it implemented. That means getting money from foreign streamers such as Netflix and Disney+ to subsidize designated Canadian film and TV producers while also forcing streamers to give greater prominence to official Canadian content.
Heritage Minister Pascale St-Onge made it clear in November that time is of the essence and the Liberals certainly want to signal – primarily to Quebec – that money will be flowing prior to an election in 2025.
CRTC Chair Vicky Eatrides appears determined to meet those expectations. She has put virtually all broadcasting work on hold for at least two years in order to focus resources on delivering the goods.
But now Quebec wants more.
Mathieu Lacombe, Quebec’s Minister of Communications and Culture, is planning to introduce his own legislation this year in an effort to force digital platforms to offer more French content.
He hasn’t yet said which of a provincially appointed committee’s 32 recommendations will be implemented, but according to The Canadian Press, the goal is clear: to end what the report’s authors call “the hegemony of English-language content on such platforms as Apple TV and Spotify.”
Given that both telecommunications and broadcasting are under federal jurisdiction and regulated by the CRTC – a matter settled in court more than 40 years ago – some might think Mr. Lacombe can’t possibly achieve his goals.
But the CRTC’s jurisdiction over streaming – newly granted last year – has yet to be tested in court and experts have questioned whether that’s a slam dunk.
In the meantime, Quebec’s ambitions are waking ghosts of constitutional battles past.
And I’m not the only one who thinks so.
“What Quebec wants a say over now is online streaming,” says Leonard St. Aubin, who was on the public-sector teams that built the Broadcasting and Telecom acts that passed in the early 1990s. “Armed with new legal opinions, Quebec’s committee is recommending jurisdictional challenge as a lever to get a formal federal-provincial entente. The risk of a challenge [could] become a permanent threat, whenever Quebec is unsatisfied with federal policy or regulatory outcomes.”
To put it bluntly, a world of hurt awaits, particularly for the CRTC.
Both Ms. Eatrides and Ms. St-Onge are in a hurry and neither knows at this stage exactly what it is they need to do to mollify the Quebec cultural lobby, a powerful and perennially aggrieved creative collective.
Nor does anyone have any real sense yet of how the streaming industry might react. Certainly there is a widely held view that should the regulatory burden be viewed as overly cumbersome, many smaller streaming companies might make their services unavailable in Canada. And it’s not entirely out of the question that some large companies could follow suit.
So, if Mr. Lacombe fulfills his promise, as Mr. St. Aubin puts it, “Anyone with a vested interest – the cultural constituency, minorities, producers, creators, broadcasters, streamers – [might] be lobbying and playing off both levels of government, and the CRTC.
“Quebec might claim a more important role in CRTC proceedings. All of this would further complicate and politicize CRTC regulation, and appeals of CRTC decisions to Cabinet. Federal politicians would be drawn into Quebec-specific, cultural, and language politics in a much more visible, likely undesirable, way.”
Indeed, how can the CRTC possibly create regulations that meet the needs of a provincial government to which it does not report (but must kowtow) and still retain any credibility whatsoever as a national regulator?
Quebec has always had an outsized influence over CRTC affairs, largely owing to its aggressive interest in cultural preservation through subsidy and protectionism. The fact the commission is physically located in Quebec does not go unnoticed.
But now, what will it take? Will one-third of Netflix’s offerings in Canada have to be not just available in French but be originally in French and Quebec-produced? Will Quebeckers still be able to access the music they have been freely choosing, the overwhelming majority of which is neither francophone nor Quebec-produced? Could all Canadians find themselves with fewer streamers because of a law passed in just one province?
Or, will Quebec become a distinct online society – a sovereign digital and cultural entity?
We might be about to find out.
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 Canadian Radio-television and Telecommunications Commission (CRTC).
