The previous efforts to give the CRTC sweeping powers to integrate the internet into its system through the Broadcasting Act were archaic and fundamentally wrong, write Peter Menzies and Konrad von Finckenstein. They advocate instead for a targeted approach to ensure continued innovation without compromising free speech.
By Konrad von Finckenstein and Peter Menzies, October 26, 2021
As the refreshed Trudeau minority government pushes forward with what we presume will be revised versions of Heritage Minister Steven Guilbeault’s controversial bills C-10 and C-36, we suggest it pause, breathe and consider a more poised approach.
The problems with online harms legislation (C-36) are being revealed through the responses of numerous civil and human-rights organizations. The issues connected to C-10 are more firmly embedded within the public memory because of the controversy that ensued last spring when Mr. Guilbeault sought to grant the Canadian Radio-television and Telecommunications Commission (CRTC) authority over the internet, including personal social-media posts. Its stated intent, while lacking in sophistication, was direct: to “get money from web giants” for companies and organizations within the CRTC’s regulatory system.
What remains unclear is whether the government has a broader internet strategy. Sure, streamers have an impact on the media world. But does the government also care about the impact of Uber on the taxi industry or of Skip The Dishes on restaurants? Is there a strategy – or even an ambition beyond extracting money from Big Tech – unfolding regarding how Canada can use the internet to its global advantage?
So far, the answer appears to be no.
That being the case, we have some practical suggestions that will help the government achieve some of its core ambitions without falling into the rabbit holes it’s been digging.
First, the government needs to clarify its goals, which, instead of going to war with the internet world in Luddite fashion, should be to: a) ensure revenue derived from Canadians is reinvested in Canada; b) inspire continued innovation made possible by the internet/tech revolution; and c) help legacy industries transition to current technological realities.
The previous efforts to give the CRTC sweeping powers to integrate the internet into its system through the Broadcasting Act were archaic and fundamentally wrong. The internet is the great enabling and disrupting technology of our time and an incredible wellspring of innovation that would have been profoundly handicapped had Mr. Guilbeault’s ambitions not been interrupted by the election. The legislation he favoured would have unleashed a decade of regulatory wrangling and constitutional challenges and likely violated the United States-Mexico-Canada Agreement.
Any new bill therefore must explicitly state that it applies only to online commercial activity primarily engaged in the transmission of programs to the public.
Further, all activities with annual Canadian revenue of less than $100-million must be excluded from regulation with additional exemptions granted to streamers operating in languages other than English or French or under its mandate devoted to exclusively sourcing from one country (BritBox, for instance). Any rules would be applied equally to Canadian and foreign operations.
In terms of powers granted to the CRTC, it should only be able to impose requirements that are relevant for sustaining industrial and cultural flourishing. The latter would involve such matters as ensuring the presence and availability of Canadian programs, as well as access by persons with disabilities and the provision of financial or commercial information.
Financial expectations should be comparable with those imposed on broadcasters, and it should be made clear that the outcome may be a lessening of the burden on the latter. Indeed, rather than ensuring the equal handcuffing of all, the legislation should contemplate an outcome that involves a degree of unshackling by those currently within the CRTC’s system.
In order to avoid conflicts with USMCA and retaliatory measures from the U.S., the government should grab the opportunity to establish new rules for access to Canadian subsidies (CAVCO, Telefilm Canada, Canada Media Fund) that would focus on the true reflection of Canada and not just the employment of Canadian workers. The latter certainly have no shortage of work owing to foreign production activity in Canada – a benefit any new legislation must nurture and not negate. Among methods to be considered would be a points system similar to that used by the British Film Institute measuring cultural content, cultural contribution, cultural hubs and cultural practitioners. There would no longer be a requirement that companies accessing these funds be Canadian-owned.
A targeted approach such as this could achieve the goals of maintaining investment prosperity in the Canadian cultural sector and ensure continued innovation while avoiding limitations on free speech and helping legacy businesses to transition into the 21st century.
Konrad von Finckenstein is a senior fellow at the C.D. Howe Institute. Previously he was chair of the CRTC. Peter Menzies is a senior fellow at the Macdonald-Laurier Institute. Previously he was vice-chair of the CRTC.
