Senate Standing Committee on Transport and Communications (TRCM) – September 27, 2022, 9:00 a.m. to 11:00 a.m.

Comments from participants are provided in the original language.

Report Prepared By

Équipe des Affaires parlementaires, Direction des Affaires parlementaires et du Cabinet
Patrimoine canadien

Subject of the meeting

The subject matter of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts

Witnesses:

9:00 a.m. to 10:00 a.m.

Forum for Research and Policy in Communications

• Monica Auer, Executive Director

As individuals

• Pierre Trudel, Professor, Law School, Université de Montréal
• Irene Berkowitz, Senior Policy Fellow, Audience Lab at The Creative School, Ryerson University

10:00 a.m. to 11:00 a.m.

As individuals

• Justin Tomchuk, Independent Filmmaker
• J. J. McCullough, YouTuber and columnist

The Wyatt Sharpe Show

• Wyatt Sharpe, Host

Summary

Forum for Research and Policy in Communications: Monica Auer, Executive Director

• Bill C-11 empowers the CRTC to regulate user-uploaded content, and in turn users directly and indirectly
• Propose dropping 4.1 and 4.2 all together.
• Broadcaster’s operation, not internet users, should be regulated
• Bill C-11 also contradicts parliament’s declaration that a single independent public authority

regulate broadcasters by giving cabinet the final says over nearly all CRTC decisions

• 7(7), 10(1.2) and 34,995 should be dropped
• 3(1)(s)(v) should be dropped
• 5.2(1) should give transparency and accountability to all Canadians in all CRTC

Proceedings

• It explains licensing but says nothing about the scope, operation, or application of registration. It condones untimely decision-making

Pierre Trudel, Professor, Law School, Université de Montréal

• Les multiples exclusions introduites dans le projet de loi C-11 ne font que rendre la loi inutilement complexe et ne font que compliquer inutilement un texte qui a pourtant tellement d’importance pour l’ensemble des Canadiens.
• Les algorithmes ne sont pas des objets techniques neutres
• L’article 10, propose une exclusion inutile: le paragraphe viendrait retrancher ou interdire au CRTC d’avoir la possibilité d’exiger l’utilisation d’un algorithme informatique ou d’un code source particulier

Irene Berkowitz, Senior Policy Fellow, Audience Lab at The Creative School, Ryerson University

• Bill C-11 perhaps unintentionally strikes the heart of UGC’s business model
• Narrow Bill C-11 to gated platforms
• Delete UGC from scope to avoid challenges and massive CRTC hearings that will be overwhelming and delay benefits to legacy producers

Questions:

Leo Housakos (C)

• What do you say to the witnesses who have come before this committee that forcing platforms to base algorithms on anything other than the consumer’s own behaviour and preferences, which is what Bill C-11 does and what you’re advocating for, will negatively impact consumer choice, eroding consumer trust until the point that they tune out the content and even the platforms altogether? That goes against what you’re saying about consumer choice, doesn’t it Mr. Trudel?
  • Trudel: Le système canadien de radiodiffusion fonctionne de manière à assurer le soutien à la production; non seulement à la production dominante anglophone, mais aussi celle émanant des autres langues officielles et des langues autochtones. Pour faire cela, il faut s’assurer que les joueurs majeurs du système contribuent et investissent dans la production d’œuvres canadiennes.

René Cormier (GSI)

• Vous avez parlé tout à l’heure de la liberté d’expression. J’aimerais vous entendre sur les préoccupations qu’ont les artistes. Est-ce que selon votre compréhension de la loi, le CRTC aurait le pouvoir de régir les créateurs directement ?
  • Trudel: Selon ma compréhension de la Loi sur la radiodiffusion, il me semble que le CRTC n’a pas ce pouvoir, mais plutôt celui de régir les entreprises de radiodiffusion. Le CRTC peut édicter des ordonnances, des conditions de licence ou des règlements qui s’appliquent aux entreprises et non pas aux créateurs directement. C’est donc de façon indirecte. De plus, lorsque le CRTC prend de telles décisions, il doit tenir compte des dispositions qui existent déjà dans la Loi sur la radiodiffusion et que le projet de loi propose de renforcer, c’est-à-dire des dispositions qui commandent d’interpréter et d’appliquer la loi dans le respect de la liberté d’expression. Par conséquent, le CRTC a une obligation de s’assurer que ses décisions sont compatibles avec la liberté d’expression telle que reconnue au Canada, notamment par les tribunaux, qui ont le dernier mot dans l’interprétation des droits fondamentaux.

Fabian Manning (C)

• Mr. Trudel has testified that he doesn’t believe Bill C-11 goes far enough in giving the CRTC authority over user-generated content and algorithms. How do you respond to that statement? Is it inevitable?
  • Auer: I suggest dropping proposed sections 4.1 and 4.2 to remove users from its scope and the CRTC’s authority. The Broadcasting Act is called the Broadcasting Act because it addresses broadcasters. Why, then, would we propose to regulate any kind of user? Moreover, there’s an inconsistency between 4.1 and the 9(4) exemption power. We’re either keeping everybody in and then registering them, let’s say as users, or we’re exempting them because they’re not able to meet a specific threshold of material contribution. Proposed sections 4.1, 4.2 and 9(4) don’t play well together. In terms of accountability and transparency, the problem with the CRTC right now is that it is not making its decisions public.
• If Bill C-11 is not amended, based on the historical record as you see it, how do you envision the CRTC implementing the provisions of Bill C-11?
  • Auer: I don’t know if you want more than that, but 5(2) of the act gives the commission huge flexibility and it says, “When you regulate, be flexible.” Terrific, but then we turn around and say yes, but you most follow 3(1).

Julie Miville-Dechêne (GSI)

• Ne pensez-vous pas qu’en ne modifiant que les recommandations statiques, c’est-à-dire en ne touchant pas à leurs algorithmes, les plateformes réussiront à mettre de l’avant des contenus que l’on voit moins, c’est-à-dire minoritaires, francophones, autochtones ? Est-ce qu’il est possible techniquement, étant donné la façon dont les gens écoutent la musique, de faire une place certaine à l’écoute de musique francophone ou autochtone sans toucher aux algorithmes ?
  • Trudel: Ce qu’il faut, en fait, c’est une réglementation qui permet à l’autorité régulatrice du CRTC d’exiger des comptes, éventuellement d’exiger que les algorithmes utilisés par les plateformes qui jouent un rôle significatif dans l’espace canadien, on s’entend, exiger des expertises sur le fonctionnement de ces dispositifs techniques complexes, exiger des audits et des évaluations de façon à vérifier si l’offre de contenu qui est proposée aux Canadiens reflète les exigences et les objectifs qui sont énoncés dans la Loi sur la radiodiffusion, c’est-à-dire assurer la promotion et la découvrabilité des œuvres canadiennes.
• On nous dit donc que si on touche aux algorithmes et qu’on change la recette, cela va plutôt défavoriser les contenus minoritaires, car si l’auditeur ne clique pas sur ces contenus, ils vont descendre dans la liste de recommandations. Je dirais que c’est l’argument le plus important. Que répondez-vous à cela ?
  • Trudel: Dire cela revient à dire que les algorithmes sont par définition neutres et non biaisés. Or ils sont carrément biaisés finalement. Ils postulent que les choix que font les consommateurs faisant partie des majorités sont plus importants que les autres.

Donna Dasko (GSI)

• You spoke about disinformation. This is a topic we haven’t heard very much about with respect to Bill C-11. Could you just elaborate about what it is you were referring to with respect to what’s in the bill and what you’re looking for? The CRTC is not responsible for requiring firms to employ X number of people because they do operate in a competitive marketplace, even though the marketplace for Canadian broadcasters is very highly regulated. Surely you’re not saying that they should be required to hire and keep X number of people. They have to operate in an environment where they can’t keep all the people they may have in the past. Could you talk about those two things?
  • Auer: Disinformation was a surprise to me because it was not in the bill presented to the house, Bill C-11. Of course, it wasn’t in Bill C-10 at all. It wasn’t in Bill C-11-1 or in its summary. It wasn’t in Bill C-11-2. It just popped up in the last day of hearings, and suddenly we have a brand new, major role for community broadcasters. The act refers, for instance, to a community element.
• Obviously, our Canadian broadcast system is regulated with respect to CanCon. Do you think we should drop all the regulations we have with regard to CanCon in our Canadian broadcast system?
  • Part of my larger point is that this is a super-complicated question, and removing UGC will only allow this question to be looked at in depth. My book opens with the question, “What are the most important three words in media?” The answer is “audience, audience, audience.” We haven’t built this into CanCon, and we can. We need to integrate a platform-agnostic producer access system. So no, I don’t think we should drop CanCon regulations. Many countries around the world have evolved these to be more industrial incentives. In fact, many countries have these.

Paula Simons (GSI)

• I do want to come back to the disinformation part, but I really want to get to your quite bold statement about 4.1 and 4.2. Many people have flagged this for us as an area of concern and have suggested various amendments to tweak and twist these sections. You have suggested something quite audacious, which is to eliminate them completely. I am seized with the clarity of this notion.
  • Auer: sections 4.1 and 4.2 introduce such power to the commission over individual programs. I want to be clear; I am aware that this does not regulate users, but their programs. The question is: Why users’ programs? If you want to address the large social media services, then include those specifically in Bill C-11 and regulate their activities.

Karen Sorensen (GSI)

• Do you believe that the CRTC is not the right body to regulate Bill C-11 or do you think its authority should be more limited? Feel free to elaborate on what they need to do differently if they are going to be the regulators of Bill C-11. If it isn’t them, then who? When we hear criticism of CRTC connected to this bill, who else should be regulating?
  • Auer: I think Canada needs an independent, arm’s-length regulatory authority. Handily, you have the CRTC with 400 to 500 people there. I think it would be a misuse of public funds to reinvent it, but it should be required to report clearly on what it’s actually doing.

Marty Klyne (GPS)

• It seems reasonable to me that the government should update the Broadcasting Act after 31 years if it wants to bring online platforms and streaming services under the purview of the Broadcasting Act, but what could they be doing differently that would alleviate the concerns we’ve heard from digital-first platforms and content creators?
  • Berkowitz: What can be done is to cleanly delete UGC creators from this bill. If that’s acceptable in principle, a number of parts of the bill—2, 3, 4, 9, and 10—could be clarified along that.
• On your other statement: “Bill C-11 does not support Canadian storytelling. It supports the old ways that define and distribute our stories.” How is this done now, and on what platforms or streaming services? And how does the bill not support storytelling?
  • Berkowitz: I think the bill supports storytelling that is done in the old way in terms of the Canadian content regulations for linear broadcasting, but there are lots of other Canadian stories that are being told now as you’ve heard from Netflixand Disney and the hundreds of thousands of stories that are told in the UGC sector.

Bernadette Clement (GSI)

• We all know that Black, racialized, marginalized people struggle to see themselves represented in all the places and all the rooms. They have tended to support this bill, and I wonder what you would say to them. I heard you say, Ms. Berkowitz, it’s about the audience, audience, audience; but audiences, I would argue, are finding themselves in cozy silos where they’re listening to exactly what they want to listen to from people that look and sound just like them in their language. I wonder what you would say to those stakeholders?
  • Berkowitz: You have to go about this from the top down and the bottom up. I was reviewing the CMF’s annual report just yesterday, actually. And they have a tremendous set of programs to fund programs by a lot of equity-seeking groups that are incredibly important. I think that plus the diversity language in Bill C-11—this is a tremendous characteristic of our country that we are diverse and we are proud of this. I think we’re a world leader in this. I don’t think there’s any proof that UGC requires the thumb of government so to speak to make audiences for UGC content embrace this content, because the data shows that they do.
  • Auer: If we want to make sure that Canada is truly reflected properly, it is up to the Canadian regulatory authority to know, A, how many and what kinds of people are reflected in broadcasting; B, if there are concerns to address those. It can be addressed. I don’t think the CRTC right now even tracks, for instance, employment. And although it gathers data on how many people are in programming, technical, administration, and other things, they don’t distinguish between the key groups that today we believe should be considered.

Leo Housakos (C)

• It seems to me there are two sides to this debate. There are those saying Bill C-11 protects and promotes Canadian arts and culture, and there are those saying that Bill C-11 protects and promotes legacy broadcasters. In your opinions, which one of the two does this do?
  • Auer: I think the commission is faced under section 3 with requirements that address both the cultural side, but also let’s not forget the political side through the news criteria and under the Canada Elections Act, the availability of information about news, but as well as the existence of actual broadcasters.
  • Trudel: Je pense que tout le monde convient que le CRTC est dysfonctionnel depuis une décennie et ne joue pas adéquatement son rôle. Cela dit, ma compréhension d’un projet de loi comme C-11 est justement de changer le cadre législatif de manière que le CRTC soit équipé pour assurer la transformation du système de radiodiffusion d’un environnement traditionnel à un environnement de plus en plus fondé sur les plateformes en ligne.

Summary

Justin Tomchuk, Independent Filmmaker

• Proposed section 4.2(a) of Bill C-11 makes it clear that my business will fall under the call of the CRTC’s directives
• Seems to be a misunderstanding at these hearings that algorithm talk is not a concern and is taking up too much time.
• You cannot realistically mandate discoverability outcomes without forcing platforms to change their algorithms
• Outcomes will prioritize CanCon and will displace others period
• If passed, social media and streaming platforms will downgrade CanCon to an international audience
• CanCon would have an unfair advantage globally, so platforms will be forced to net zero their performance outside our borders
• It also sets a precedent for other countries to impose similar laws, compounding the problem and creating nationalistic bubbles of content rather than a free exchange of culture
• There are no revenue thresholds for online undertakings
• Every website that streams videos to Canadians could be subjected to the CRTC’s demand

J. J. McCullough, YouTuber and columnist

• Zero desire to live under a government with the power to force platforms like YouTube to push, promote, suggest or otherwise encourage certain kinds of Canadian content to Canadians who have not freely chosen to see it.

The Wyatt Sharpe Show: Wyatt Sharpe, Host

• It’s important that the programming we create is available to people in different languages, regardless of any barriers that they may face

Questions:

Leo Housakos (C)

• What would you like to see the bill safeguarded from? What changes to this bill would you like to see in order to achieve your objectives? Would you be agreeable to passive discoverability?
  • Tomchuk: It’s my opinion that any form of discoverability mandate is going to negatively affect Canadian content creators such as myself and not only myself, but any Canadian person who uploads to YouTube if they derive an income directly or indirectly. There’s no real change. Honestly, my suggestion would be to remove discoverability mandates entirely from the bill because it’s unlike radio and television where there were a limited number of slots.
• In your view, shouldn’t we be unleashing that Canadian culture and utilizing this technology to reach out to the world rather than trying to defend a model that is clearly not working financially and is clearly not working when you see the ratings and eyeballs they’re getting compared to what you’re getting?
  • Tomchuk: Legacy media is losing eyeballs, but I wouldn’t say it’s necessary because of the technology disruption. For one, I think they’ve been misunderstanding their audiences’ desires. Particularly in the subsidized legacy media industry, a lot of content is getting produced without any real audience there in the first place. Their failure to succeed is not necessarily because YouTubers are disrupting them. They have failed to reach their own audiences in the first place.

Marty Klyne (GPS)

• The bill’s aim is to make Canadian content accessible and discoverable, and just as Canadian broadcasting has done for decades, the bill requires streaming services to participate and contribute to Canadian programming and production in an equitable and fair way. How does this threaten YouTube and streaming services? If you believe it would deprioritize Canadian content to an international audience as Mr. Tomchuk referred to—would it not also concurrently broaden your reach across Canadian viewers?
  • McCullough: Perhaps it would, but Canada is a relatively small country in the global scheme of things. We have 38 million people in a world of billions. So even if I maximize my Canadian audience exposure, if my international exposure is going down, that is still a net negative overall because the international numbers are so much higher. The potential is so much higher. Being a big hit internationally will always be a much bigger prize than just even being the biggest hit in a Canadian context.
• Where in the bill does it wall off these online streamers or services that are getting drawn into this? Where under the Broadcasting Act will it not be promoting or delivering Canadian content outside of Canada?

Karen Sorensen (GSI)

• : Is there anything in this bill that you think would be helpful to Canadian creators if amendments to protect the USG were made?
  • McCullough: There is obviously a financial dimension to the bill. There is a lot of focus and rightfully so on the content side. But there is also the idea of getting big tech to pay its fair share. This money then goes into funds like the Canadian content fund that is sprinkled around to help subsidize various artists.

Julie Miville-Dechêne (GSI)

• Would you want to have an opt-out clause from discoverability for YouTubers? In other words, YouTubers could choose to identify themselves as Canadian to benefit from discoverability some would, I’m sure or not identify as Canadian and stay in this free-for-all world that seems to fit your ambitions?
  • Tomchuk: I would be against that, only because if there is an opt-out system, you’re still going to be displaced by legacy media CanCon content on those same platforms. In any case, if you opt out, you would be at a disadvantage within your own country because the algorithm is displacing you for CanCon content. If you opt in, you’re going to be at a disadvantage globally because you’re being shown to more Canadians and fewer international players. So I would not believe that an opt-out system would be beneficial for creators like ourselves.
  • McCullough: I would be inclined to agree with what Justin said. I don’t want to see a situation where Canadian content creators have to choose between their own country and international stardom. The status quo has allowed them to be successful in Canada and internationally.
• This freedom that you’re advocating is obviously good for YouTubers who succeed, but it has another impact on minorities. I’m thinking of the French minorities but also the native and Black minorities. This is not easy. Where do you find the right balance there? I’m thinking about Canadian content.
  • Tomchuk: I would challenge the notion that these algorithms and big media platforms are discriminating against minorities. If you’re a content creator, there is no gatekeeping involved to upload something to YouTube. I’m half Indian and Ukrainian. I don’t consider myself a minority, but I also don’t feel like I should have any advantage over anybody else, because the internet is a level playing field.

Fabian Manning (C)

• We don’t specifically know how the CRTC will administer the legislation we have before us, partly because the government is refusing to release its policy directive to the CRTC on the implementation of the bill and won’t do so until after the bill has passed, which concerns us from many avenues. Do you believe it will be useful and important to have the policy directive released now? Does the failure to release the policy directive contribute to uncertainty for you and your colleagues?
  • McCullough: f you read of Bill C-11, you might not see some of the things that we’re worried about, but, in part, that’s because Bill C-11, like a lot of legislation that seems to be passed in this country these days, just delegates authority to some executive branch agency that is charged with hammering out all the specific rules of how the legislation will be implemented on a day-to-day basis. Politicians pass laws that set out broad guidelines and objectives, but then it’s ultimately the executive branch agency, such as the CRTC, that has to come up with the specifics.
• In regard to your own operation and your own challenges, what implications would the bill have to your specific operation, without the clarity?
  • McCullough: We don’t really know what our future is going to look like. We don’t know what kind of content we’re going to have to make or how this is going to affect our revenue, discoverability and our bottom line. This is what we make a living doing. It is not helpful for government to have introduced a tremendous amount of uncertainty into the future of this very vibrant, dynamic and important part of the Canadian cultural economy at this critical time.

Paula Simons (GSI)

• I want you to talk to us about how you were able to leverage YouTube in that way, the trajectory of the path, what your audience is now, and what support, if any, you’ve had from YouTube in the building of that audience.
  • Sharpe: I would say that social media and the power that social media has to impact and to ultimately allow people to express their messages which is, in a certain respect, what I’m doing—has obviously grown over the past few decades. I would say that when I first started in January of 2021, even going from there up until now, just even releasing my first couple of episodes and interviews on my program, not necessarily thinking of the way that it would be able to reach people at the point it has now another interesting aspect is you really gauge what type of topics people are interested in.
• For you as a Canadian journalist using YouTube, has YouTube corporately provided you with any supports to help build your audience and get your show in front of more people?
  • Sharpe: Not necessarily per se providing support, but the same as any other content creator on the platform. For example, Jeanette Patell, who also came to your committee, I’ve interviewed her. The people behind the scenes at YouTube are all supportive of not just the work I do, but of Canadian journalism and ensuring that Canadian journalism can be seen and be as accessible as possible to Canadians from coast to coast to coast.

Jim Quinn (GSC)

• I’ve had questions evolving throughout this presentation. The one that you just finished addressing a couple of questions ago was with respect to the uncertainty; there is no policy directive released. As the CRTC develops a regulatory regime, that regime goes through the Canada Gazette-ing process, and sometimes that is not given the rigor of review that users may want to have. Is there something else that can be done? I am getting through to the appeal process. A regulation comes through. Somebody says, “no, that’s not fair; that’s not right.” It’s an appeal process that, as I understand it, could involve courts and things like that. Is there something else that could be done? If we could change the system to allow a body such as the Senate, a body such as this committee, to be involved in regulatory concerns that are raised by users so that we can have some certainty about what those regulations are and their effect, is that something you think might be helpful?
  • Tomchuk: It would definitely be helpful to see what their intentions are by putting forward at least a draft of the directives, because right now it’s a black box that we’re just basically approving that we will find out later. By then, it will be too late because they have the power to do as they choose to do.
• We’re trying to make things more accessible and discoverable. Some of the discussions that I’m hearing here this morning cause me to ask, in attempting to achieve that, is there an opportunity to do quite the opposite? I’m worried that if we try and force people to see Canadian content, for example, the answer could be quite simple, to click away, having quite the opposite effect. Is that something we should be concerned about?
  • Tomchuk: Yes, absolutely. Unlike the radio, if you don’t like what’s being played on the radio, you have to sit there and listen to it. On YouTube, one click away and you’re gone. People will start to resent the content that is being forced on them, so you might end up building an audience that resents the content we’re trying to promote. It is the opposite effect.
  • McCullough: CanCon in some corners of this country is a dirty word or is an insult, because it is associated with CRTC mandates forcing content that people don’t really want onto the airwaves and on their televisions. I think the last thing we want is for that same sort of culture of resentment towards Canadian content to emerge in the internet space.

Next meeting:

Il est prévu que le comité poursuivre l’étude du projet de loi C-11 le 28 septembre 2022.