The Online Streaming Act was finally assented to. It updates the Broadcasting Act to ensure fair treatment for all companies that broadcast programs to Canadians. With this update, Canadian broadcasting legislation applies to Canadian or foreign companies that provide audio or audiovisual programming to the Canadian public.
The Act concerns the activities of broadcasting programs for profit by any means. It is the activity of broadcasting programs on the Internet or in another environment that is subject to rules. As the Canadian Radio-television and Telecommunications Commission (CRTC) explains in a document intended to deflate certain beliefs about this law, it is the online platforms that are targeted, not the individuals who upload content.
The Act is not intended to regulate the lesser uses of devices capable of producing sounds and images. It concerns activities that have a noticeable effect on the effective availability of programs emanating from Canadian creativity. The CRTC also has the power to exempt from the application of the requirements of the law companies whose activity does not pose particular problems for the achievement of the objectives of the broadcasting policy set out in the law. That’s why claims that the law might regulate influencers who have a channel on YouTube are a fabrication.
For nearly a century, our regulation of electronic media has aimed to remedy the scarcity of Canadian programming. It is to ensure real choices that it differs from that which prevails in the United States. The law on online broadcasting is a continuation of the measures that have so far made it possible to have a media system offering one of the widest choices of programs for diverse audiences. To remedy the lack of Canadian programs capable of competing with American productions, the authorities have implemented measures to ensure that a portion of the revenue generated by the consumption of content is reinvested in the production of Canadian programs. . This approach is now extended to online platforms.
The statement of Canadian broadcasting policy enshrined in the Broadcasting Act affirms that French- and English-language broadcasting differs in terms of their operating conditions and recognizes the minority context of French in North America. The need to reflect Canadian diversity in programming choices is affirmed.
It states that the broadcasting system must, through its programming and the employment opportunities it offers, meet the needs and interests of all Canadians — particularly those who come from racialized communities or who represent diversity through their ethno-cultural background, socio-economic status, abilities and disabilities, sexual orientation, gender identity or expression, and age — and reflect their condition and aspirations, including equal rights , the linguistic duality and the multicultural and multiracial nature of Canadian society, as well as the special place occupied by Aboriginal peoples.
In addition, the law requires promoting the vitality of minorities and supporting their development, as well as promoting the full recognition and use of French and English in Canadian society.
To put an end to the claims that this law would allow the government to decide what programs individuals can watch, it should be recalled that its article 2 (3) provides that it must be applied with respect for freedom of expression and the independence , in journalism, creation and programming, enjoyed by broadcasting companies and creators.
To give effect to the general statements of the Act, the CRTC is given powers to require not only reinvestment in Canadian productions, but also the implementation of measures to ensure that Canadian programs are visible and discoverable in connected environments. . The implementation of these measures will be the subject of consultations with all interested parties. It will therefore be necessary to pay attention to the public consultations that the CRTC will undertake in the coming months.
In order to provide the relevant regulatory frameworks for rapidly changing situations, sufficiently flexible rules are needed to regulate activities with sometimes unpredictable developments. But above all, we need a much more proactive CRTC, inclined to give itself the means to anticipate changes so as not to find itself overwhelmed when the targeted activities take on vectors that are currently marginal or unknown. The regulator must anticipate trends and intervene when changes in practices, technologies or markets create imbalances. This is the formidable challenge posed by this law on online broadcasting.
Professor, Pierre Trudel teaches media and information technology law at the University of Montreal.