By Peter Menzies, May 24, 2022
The Canadian federal government is on the verge of further empowering the Canadian Radio-television and Telecommunications Commission (CRTC) as our regulator of Internet content, including as it pertains to streaming companies. To really appreciate the all-encompassing grasp of Canada’s soon-to-be online regulator, look no further than its history managing religion and pornography.
It all goes back to the 1920s when Jehovah’s Witnesses started using the unregulated airwaves to issue verbal smackdowns on Roman Catholic and Protestant churches. Not long after, Saskatoon station CHUC – owned by the Jehovah’s Witnesses – allowed J.J. Maloney, Grand Wizard of the Ku Klux Klan, to make an on-air speech that was pretty much the end of Canada’s era of free market radio. Religion on the airwaves became an official “matter of concern” and in 1932 the Canadian Radio Broadcasting Commission (CRBC) was formed.
The CRBC and its descendants, down to today’s CRTC, refused for more than 60 years to license religious broadcasters, only buckling slightly in 1983 with nervous approval of a multi-faith cable channel. No single-faith licences were permitted until over a decade later, all because of the Jehovah’s Witnesses’ bad behaviour in the 1920s. Even now, regulations are still in place to make sure any faith-based broadcasters air alternative views.
In other words, if you want to tell the world that “Jesus loves ya buddy,” you have to give a few hours a week to someone who says, in effect, “No, He doesn’t.”
It wasn’t a blinding flash of light on the Road to Damascus that softened the CRTC’s heart on this matter in the 1990s. Cable companies were keen on launching video-on-demand channels featuring adult programming (porn) and the CRTC wanted to license them. The product had proven popular on rogue satellite services and in video stores, and this was a way of helping those in Canada’s regulatory system join the party, cash in on the money shots and continue to meet the Broadcasting Act’s aspirations to provide “a wide range of programming that reflects Canadian attitudes, opinions, ideas, values, and artistic creativity.”
That said, the CRTC leaders of the day discerned that it might be tricky to continue justifying their decades-long ban on faith values while giving two thumbs up to Debbie Does Dartmouth. So, after a tense debate that ended with the chair casting the decisive ballot, it became possible in 1993 to be licensed as a religious broadcaster; thanks, essentially, to porn, which became a pot of gold for cable companies.
Not long afterwards, porn went online and became a significant driver of demand for Internet service and the bandwidth needed to watch streamed content. Video stores died and as online options grew, cable video-on-demand revenues went into a decline that’s recently averaged close to 8 percent a year. This means there’s little doubt the CRTC will soon be asked by the nation’s cable and satellite providers to recapture some of that lost loot once new legislation empowers it to do so.
The Online Streaming Act (Bill C-11) is now being studied by the House of Commons Heritage Committee. It specifically targets regulation of online streaming companies with the goal of making sure they “contribute to the system,” which means paying lots of money into funds that are distributed on a two-thirds English, one-third French basis for approved film and television productions. Given that Canada is a global leader in the creation, distribution and consumption of online sex, there’s every reason to expect the industry will play a role in satisfying Canada’s cultural needs and meeting the objectives of the Broadcasting Act.
Mindgeek is a private Canadian company headquartered in Luxembourg, with offices in Bucharest, Dublin, London, Los Angeles and Montreal. Its primary business is pornography and its most popular sites are Pornhub and YouPorn. It claims to be among the world’s top five bandwidth consumption companies.
While Heritage Minister Pablo Rodriguez and others speak of US-based companies such as Netflix and Disney Plus as revenue sources needed to shape the Canadian aesthetic, homegrown Mindgeek is clearly within its scope. The final decision regarding who’s in and who’s out is to be made in a future CRTC hearing, but it’s difficult to imagine Commissioners giving Pornhub and its many hours of user generated content an exemption.
Still to be decided, too, is how the CRTC will manage Canadian content (Cancon) and other obligations such as closed captioning and described video. (A brief digression: the Commission has on occasion granted relief to licensees having difficulty finding staff able to watch porn constantly – one can only imagine – while recording play by play commentary of what is taking place on screen for the benefit of the visually impaired.)
Canadian content, regardless of the genre, has always been of great importance to the regulator. This was widely reported a few years ago when some companies were called to task for not providing sufficiently robust levels of screen time for sexually-expressive and enthusiastic Canadian artists. While Cancon percentages are difficult to mandate in the infinite world of the Internet, it is likely that issue will be replaced by what Rodriguez and other advocates of C-11 refer to as “discoverability.”
If all goes as planned by proponents of Bill C-11, the first couples, groups, threesomes or orgies that pop onto a Pornhub viewer’s screen will be Canadians sharing their “stories” with other Canadians. Hinterland Who’s Who and all that. If this isn’t enough to keep fans of Pornhub – which according to Statista is more popular than either Instagram or Twitter in Canada – up at night, there is more potential legislation to regulate it underway.
The “Protecting Young Persons from Exposure to Pornography Act (Bill S-203)” is the work of Senator Julie Miville-Dechêne, a former Radio-Canada journalist. Her intent is to make “sexually explicit material” only accessible to people at least 18 years old. Among the concerns raised is the privacy issue triggered by demands for the use of facial-recognition software to confirm that the person accessing porn online is in fact the person registered to do so. Fines of up to $500,000 are contemplated for companies that don’t comply.
Private Members bills don’t have a great record of success. But, in the event that this one does succeed, there is provision in Bill S-203 for cabinet to designate an agency to oversee its application.
Rodriguez is already granting the CRTC authority over the Internet, giving it oversight on how newspapers get and spend money from “web giants” in the Online News Act, and laying the groundwork for the CRTC to be the regulator for his Online Harms legislation. As such, the CRTC would be a natural home for Senator Miville-Dechêne’s legislation, too. They have, after all, been keeping an eye on this genre for decades.
All that new work means the CRTC will have to make significant increases in its number of employees. And they will discover even more regulatory challenges waiting in the wings – one of which might just take their organization full circle.
Because as it turns out, the Jehovah’s Witnesses have among the world’s most popular religious websites. Since it uses both audio and video, it will also be under CRTC supervision once Bill C-11 is passed. So many sites; so little time.
Peter Menzies is a senior fellow with the Macdonald-Laurier Institute, past vice-chair of the CRTC and a former newspaper publisher.