BILL C-11: THE ONLINE STREAMING ACT FINALLY ADOPTED
Caroline Jonnaert1 et Élisabeth Lesage-Bigras2 [1]
ROBIC, LLP
1 Partner, Lawyer and Trademark Agent, 2 Lawyer
On April 27, 2023, Bill C-11 “An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts”[2] or the “Online Streaming Act” (“Bill C-11”) received royal assent, making its adoption by the federal government official. The first in a series of three bills aimed at reforming Canada’s digital framework, Bill C-11’s main objective, according to the Minister of Canadian Heritage, the Honourable Pablo Rodriguez, is to ensure “that Canada’s incredible talent has a bigger and brighter stage online”[3].
- Promotion of Canadian content
As previously explained[4], Bill C-11 redefines the notion of Canadian content by focusing on improving representativeness and cultural diversity, in addition to making online undertakings, i.e., undertakings “for the transmission or retransmission of programs over the Internet for reception by the public by means of broadcasting receiving apparatus”[5], subject to broadcasting undertakings status from now on. This new classification consequently subjects online undertakings, including in certain circumstances social networking services, to a series of strict content obligations. As such, Bill C-11 requires online undertakings that “provide the programming services of other broadcasting undertakings”[6] to ensure the “discoverability” not only of Canadian programming, but also of original Canadian programs[7]. Undertakings will also be required to “clearly promote and recommend Canadian programming”[8], and “ensure that any means of control of the programming generates results allowing its discovery”[9].
- Investment in Canadian content
In addition, foreign online undertakings will now be required, like Canadian broadcasting undertakings[10], to invest in the production of Canadian content. Not only will these companies have to use Canadian human resources, but they will also have to “contribute in an equitable manner to strongly support the creation, production and presentation of Canadian programming”[11].
The Canadian Radio-television and Telecommunications Commission (the “CRTC”) will be responsible for regulating and determining the total amount of expenses to be made for “developing, financing, producing or promoting Canadian audio or audio-visual programs, including independent productions, for broadcasting by broadcasting undertakings”[12].
- Next steps
The mixed reactions of various industry members to the passage of the legislation seem to reflect the substance of the debates and issues that preceded the passage of Bill C-11[13]. With the legislation now passed, the next few months will be devoted to drafting the guidelines for the implementation of the legislation by the CRTC[14]. It will also be relevant to see how the other two bills in the series, Bill C-18 “Online News Act”[15] (“Bill C-18”) and the next bill on online safety, currently being drafted, will develop[16], with Bill C-18 currently in committee review by the Senate[17]. In any case, our regulatory affairs and telecommunications team will be following the implementation of Bill C-11 closely. In the meantime, if you have any questions about the regulations surrounding digital platforms or their terms of use, please do not hesitate to contact the members of our regulatory affairs team.
[1] Caroline Jonnaert, Ph.D., partner, lawyer and trademark agent and Élisabeth Lesage-Bigras, LL.M., lawyer at ROBIC, L.L.P., a multidisciplinary firm of lawyers and patent and trademark agents.
[2] Bill C-11 “An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts”, 44th Parliament, 1st session, 70-71 Elizabeth II – 1 Charles III, 2021-2022-2023 (the “Bill C-11”)
[3] Canadian Heritage, “Online Streaming ActReceives Royal Assent” April 27, 2023, online.
[4] See our previous publication on the subject P: Caroline Jonnaert and Élisabeth Lesage-Bigras, “Reform of the Broadcasting Act – Bill C-11 is officially tabled“, February 8, 2022, online.
[5] PL C-11, ss. 2(1) “broadcasting undertaking”; and 2(2) “online undertaking”.
[6] Id. at s. 3(7)(q).
[7] Id. at s. 3(7)(q)(i).
[8] Id. at s. 3(7)(r).
[9] Id.
[10] Id. at s. 3(4)(f).
[11] Id. at s. 3(4)(f.1).
[12] Id. at s. 11.1(1)(a).
[13] See in particular Jeanette Patell, “Youtube. An Update to our Canadian Creators and Users on Bill C-11“, May 1, 2023, online; Digital First Canada, “#FixC11“, online; and ADISQ, “Adoption du projet de loi C-11 : une journée historique pour nos musiques“, April 27, 2023, online.
[14] Canadian Heritage, supra, note 3.
[15] Bill C-18 “An Act respecting online communications platforms that make news content available to persons in Canada“, 44th Parliament, 1st session, 70-71 Elizabeth II – 1 Charles III, 2021-2022-2023.
[16] Canadian Heritage, supra, note 3.
[17] Parliament of Canada, “C-18 An Act respecting online communication platforms that make news content available to persons in Canada“, online.