The CRTC last week released the first two of what is likely to become at least a dozen decisions involving the Online Streaming Act (aka Bill C-11). The decision, which attracted considerable commentary over the weekend, involves mandatory registration rules for audio and visual services that include far more than the large streaming services. The Commission says the registrations would give it “de minimis information about online undertakings and their activities in Canada, which would give the Commission an initial understanding of the Canadian online broadcasting landscape and would allow it to communicate with online undertakings.” By contrast, the inclusion of registration requirements for a wide range of undertakings, including some podcast services, online news sites, adult content sites, and social media left some characterizing it as a podcast registry or part of “one of the world’s most repressive online censorship schemes.” So what’s the reality? As is often the case, it is not as bad as critics would suggest, but not nearly as benign as the CRTC would have you believe. 

To understand what is at play, some context is needed. Bill C-11 (and C-10 before it) included registration requirements from the moment it was introduced, perhaps as a response to a showdown at the CRTC many years ago in which Netflix refused to disclose confidential information to the regulator on the grounds that it did not have jurisdiction and concerns about maintaining confidentiality. Given the government’s insistence that the bill was about “web giants”, one could be forgiven for assuming that the registration would be limited to those larger players. Yet internally, officials knew that the bill applied to far more than just large Internet streamers. As I posted back in May 2021, the government’s approach was to apply Canadian broadcast law to everyone: any audio or video service anywhere in the world, including news sites, podcasts, audiobooks and adult sites. The only question was what limits the CRTC might establish through new rules on exemptions (the government could also do so through a policy direction, but that remains in draft form).

The answer from the CRTC is that there is really just one exemption standard that matters: only those services with $10 million or more in Canadian revenues are subject to the registration requirement. That obviously excludes many smaller or foreign services with a limited Canadian user base and cannot reasonably be described as a podcast registry.  When combined with the fairly limited information required – the registration form covers name, address, URL, launch date, type of service, language of service – some will argue that there is little reason to object. Yet there are several reasons for concern. 

First, the CRTC rejected most requests to exclude services that do not fit the conventional video or audio streaming mold with the exception of some audiobook sites and video games. For example, that means podcasts, which the CRTC admits includes “individuals that host podcasts on their own websites or make them available on a subscription service platform other than a social media service are not explicitly excluded from the Broadcasting Act under subsection 2(2.1)” are in. So too are: 

• Social media services (“the Commission finds that it is neither necessary nor appropriate at this time to exempt from the Registration Regulations online undertakings that provide social media services.”)
• Adult websites (“the Commission considers that it would be asymmetrical to exempt online services that provide adult content, while traditional broadcasters offering such content remain regulated”)
• Online news services (“it would not be appropriate to exempt online undertakings that provide news services from the requirement to register”)
• Thematic services (“the Commission finds that it would not be appropriate to exempt the broad category of thematic services”)

Given the government’s regular insistence that “platforms are in and users are out”, it begs the question why some users are, by the Commission’s own admission, now in.

Second, the CRTC’s analysis frequently points to this decision as the thin edge of the wedge with the registration requirement being the first step toward a far broader regulatory framework. In fact, the rationale for the CRTC to include many of the services is that without such information it is not well positioned to regulate. This creates an obvious contradiction: the Commission claims that the registration requirement is de minimis requiring the disclosure of only limited information but then also argues that such information is important to future decision making on compliance with the Broadcasting Act objectives. 

For example, on podcasts, it states:

There are a variety of podcasts that can provide a wide range of content relating to information, opinion and entertainment. Without information about online undertakings that transmit or retransmit podcasts, it would be more difficult for the Commission to ensure the achievement of the objectives of subparagraph 3(1)(i)(iv) of the Broadcasting Act, which relate to, among other things, providing a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern, and of subparagraph 3(1)(i)(i), pursuant to which the programming provided by the Canadian broadcasting system should be varied and comprehensive, providing a balance of information, enlightenment and entertainment for people of all ages, interests and tastes.

The justification is similar for thematic services:

exempting thematic services from the requirement to register would hamper the Commission’s ability to assess whether these services provide broadcasting services in English and in French, which in turn would make it more difficult for the Commission to fulfil broadcasting policy objectives, such as that set out in paragraph 3(1)(k) of the Broadcasting Act, which provides that a range of broadcasting services in English and in French shall be extended to all Canadians. 

And for online news services:

exempting online undertakings that provide news services from the requirement to register would prevent the Commission from having an adequate understanding of the players providing such services. Without information about the online broadcasting undertakings involved in the Canadian broadcasting system, it would be much harder for the Commission to develop policies aimed at implementing the above-noted policy objectives of the Broadcasting Act and conform to the proposed Direction

This honestly makes no sense to me. Is the CRTC saying that it unable to assess the state of podcasts, streaming thematic services or online news without a registry? Or that it can’t find contact information without a registry? Does it not have Internet access and the ability to conduct searches? Has it conducted no analysis over the past decade on any of these issues? The CRTC tries to have it both ways by downplaying the information required, but then framing that information as essential to conduct regulatory analysis.

Third, the information itself may be limited, but the implications and obligations carry some significance. From a speech perspective, the regulator is effectively saying that a podcaster or news outlet that generates a certain threshold of revenue must register with the government, a position that runs counter to freedom of expression rights without government interference. The Commission repeated response to this concern is that many won’t actually be caught given the monetary threshold, which does not address why anyone should be caught for these activities. Further, this is mandated disclosure of personal information (including the inferences of revenues for individuals) which carries privacy implications. And while the information isn’t hard to compile, the analysis determining whether one qualifies is not always going to be simple (a news site is only required to include revenues from audio or video, which may not be easy to determine for those that are subscription based).

Fourth – and perhaps most troubling – is that the CRTC repeatedly signals that registration is in fact the entry point to more regulation. The podcast, thematic services, and online news examples are clearly part of a potential regulatory initiative based on meeting Broadcasting Act objectives. In other instances, the Commission just comes out and says regulation is on the way. For example, for adult sites:

there are several forms of regulatory intervention that are likely warranted in regard to online undertakings that broadcast adult content programs, which will require substantive action on the part of the Commission

For social media services:

Through the proceeding initiated by Broadcasting Notice of Consultation 2023-138, the Commission has only just begun to explore the concept of social media and the role, if any, that social media platforms may play in the broadcasting system, should they engage in activities that are subject to the Broadcasting Act. That proceeding is only a first step — future proceedings will likely be necessary to delineate more clearly a regulatory approach to these services

In fact, when discussing what revenues are considered for the purposes of registration, it states it openly:

it is the Commission’s view that the revenues of social media services derived from their own broadcasting activities, which could include, for example, advertising or subscription revenues, should form part of those services’ annual revenues as these activities would not be excluded from regulation.

It is not clear on what basis the Commission believes that online advertising now falls under the Broadcasting Act for the purposes of regulating social media services.

The takeaway from the decision is obvious: registration is the first step toward regulation with the Commission already envisioning the prospect of regulating a wide range of services. Bill C-11 was never just about “web giants” and the latest CRTC decision confirms that an extensive regulatory framework is in the works that is likely to cover podcasts, adult sites, news sites, and a host of other online video and audio services.