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Federal government’s controversial broadcasting bill returns – with new questions


Sources say the new version of Bill C-10 would now differentiate between professional and non-professional content to address fears that it would infringe on freedom of expression

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The Liberal government will attempt to differentiate how professional and non-professional online content is regulated when it re-introduces its controversial broadcasting bill, industry sources told National Post.

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The Liberal government gave notice Tuesday that it will re-introduce Bill C-10, which has generated substantial controversy over fears it would infringe on freedom of expression, meaning it could be tabled as soon as Wednesday.

Three sources, speaking on background and citing conversations with government, said there will be changes to the bill. One stakeholder group said there would be provisions to protect user-generated content. Two industry sources said the bill would differentiate between professional and non-professional content. Other non-government sources said they had also received information from various sources the bill would make a distinction around professional and non-professional content.

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If the government does attempt to address those concerns by putting “professional” and “non-professional” provisions in place, the key question would be how to define “professional” on platforms with user-generated content, such as YouTube.

Scott Benzie, CEO of the Buffer Festival, which features online video, said, “You can’t use a broad term like professional content and write legislation without knowing who it’s actually going to affect.”

The legislation may not even include such a definition; the broadcasting act update was always meant to set up the Canadian Radio-television Telecommunications Commission to regulate online platforms the way it does traditional media, with the details to be left to the CRTC to work out.

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Benzie said leaving that definition to the CRTC, which has “zero institutional knowledge” outside the traditional broadcasting sphere which it currently regulates, “is troubling to say the least.”

He noted there’s a wide of range of potential definitions for professional content – for instance, if it’s limited to creators who make money from their posts, that could include someone who makes a dollar all the way to someone who may have dozens of people working for them. Their income can also come from outside sources, like crowd funding.

He said there was no way that a system could be implemented to track when something becomes professional content.

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Before it died on the order paper prior to last year’s election, Bill C-10 drew a wave of controversy after the government removed an exemption for user-generated content, putting social media posts under the regulatory authority of the CRTC.  The government’s attempt to limit that power to “discoverability” – forcing platforms to prioritize Canadian content – didn’t alleviate concerns the bill would infringe on freedom of expression.

Another unanswered question is how the bill could define Canadian. The discoverability requirements in the last version of the bill were meant to allow the CRTC to force sites like YouTube to promote Canadian content, in order to make sure posts by Canadian creators are visible to users of these platforms.

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The current definition of Canadian content, which allocates points for how many key creative functions are performed by Canadians, doesn’t translate into the digital space, Benzie said. “Unless there’s a mandate in the bill to update what is deemed CanCon, this isn’t going to work,” he said.

University of Ottawa professor Michael Geist, who was one of the biggest critics of C-10 in the last parliamentary session, said no other country regulates user-generated content the way that bill attempted to. He pointed out that in Europe, which has extensive regulations for online services, those regulations are based on platform, not content. That means large streaming services that decide on their content are regulated, but “services that rely on third parties for their content (i.e. user generated content)” are not.

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He said regulating content when what the government wants to do is regulate platforms is “bad policy.”

“In fact, if there were efforts to distinguish between different types of content, it could cause enormous harm to Canadian creators who find themselves on the wrong side of the regulatory divide with their content de-prioritized and rendered harder to find. Pitting Canadian creators against each other is terrible policy,” Geist said.

He said the original bill raised a number of concerns, over the idea of regulating user-generated content, prioritizing and de-prioritizing content for “discoverability,” as well as “the enormous uncertainty caused by a bill that left so many specifics to a regulatory process that was likely to play out in the courts for years.”

Geist said that while “the government may tweak the bill, I fear that all three of the concerns may play out again.”

Earlier this week, Liberal House leader Mark Holland declined to say whether there would be any changes to the bill to address concerns over free speech. The office of Heritage Minister Pablo Rodriguez didn’t respond to a request for comment.

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