THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS
EVIDENCE
OTTAWA, Tuesday, December 6, 2022
The Standing Senate Committee on Transport and Communications met with videoconference this day at 9:01 a.m. [ET] to study Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts.
Senator Leo Housakos (Chair) in the chair.
[Translation]
The Chair: Good morning. My name is Leo Housakos, and I am a senator from Quebec and the chair of the Standing Senate Committee on Transport and Communications.
[English]
I would like to invite my colleagues to briefly introduce themselves.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
[Translation]
Senator Cormier: I am René Cormier from New Brunswick.
[English]
Senator Woo: Yuen Pau Woo, British Columbia.
Senator Klyne: Good morning. Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dawson: I am Dennis Dawson from Quebec.
[English]
Senator Gold: Marc Gold, Government Representative in the Senate, from Quebec.
[Translation]
Senator Miville-Dechêne: I am Senator Miville-Dechêne from Quebec.
[English]
Senator Quinn: Jim Quinn, New Brunswick.
[Translation]
Senator Clement: I am Bernadette Clement from Ontario.
[English]
Senator Manning: Fabian Manning, Newfoundland and Labrador.
Senator Plett: Don Plett, from Landmark, Manitoba.
Senator Wallin: Pamela Wallin, Saskatchewan.
The Chair: Honourable senators, we are meeting to continue our clause-by-clause examination of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts.
Once again, we are joined by officials from Canadian Heritage, which we very much appreciate. We have with us Thomas Owen Ripley, Associate Assistant Deputy Minister; Amy Awad, Senior Director, Marketplace and Legislative Policy; and Yao Ahonda, Manager, Broadcasting Marketplace and Legislative Policy.
Honourable colleagues, we adjourned our last meeting by standing on an amendment to clause 3 proposed by Senator Wallin. Under this motion in amendment, we were considering a subamendment proposed by Senator Simons. Have the subamendments been distributed? Both amendments have been distributed to colleagues.
Senator Simons, on debate.
Senator Simons: Thank you very much, Mr. Chair. I want to say that the amendment Senator Wallin has proposed is sort of complicated because it has two distinct parts. The subamendment is to the first part only. I move:
That the motion in amendment be amended by replacing paragraph (a) by the following:
(a) by replacing lines 32 to 34 with the following:
“ming services and original Canadian programs in English and French,”
The subamendment would take the clause in question, which is clause 7(q)(i), and make it less prescriptive. The way the clause is written originally, as Senator Wallin notes, is quite directive and requires a fair bit of active — I would say, to use a strong term — manipulation of algorithmic search potential. It also raises this interesting question of what an “equitable proportion” is. Presumably, if you are subscribing to an English-language over-the-top streaming service such as Amazon Prime Video or Netflix — Netflix is maybe a bad example because I think they have a French-language version — I think it’s unfair to the point of irrational to expect an equitable proportion of French-language content. I would also like to note that, as Mr. Ripley pointed out at Thursday’s meeting, this is not government language. This is language that came through an amendment by the Bloc Québécois not to Bill C-11, as best Mr. Ripley and I can reconstruct it, but during the debate on Bill C-10 in the other place. This is not government language, so I don’t necessarily expect the government to object.
My amendment would have the clause read, “ensure the discoverability of Canadian programming services and original Canadian programs in English and French.” I think it is a friendly amendment.
Senator Wallin: Indeed it is. I was just going to say that. I will absolutely, willingly, live with this.
Senator Gold: I’ll be brief. The government doesn’t support the subamendment. There was an alternative provided by Mr. Ripley in the previous meeting with an alternative interpretation of “equitable.” It’s important, given the challenges facing the French-language market in particular, that there’s an effort to ensure the discoverability of original French-language programs. That approach, I think, in the government’s view, gives more flexibility to the system. It allows programming in each official language to be promoted where they are used.
Also, the emphasis on English and French that would be amended, in our view, has the potential to undermine Indigenous and other language programming and goes counter to amendments that were proposed and brought forward by some of our colleagues during our process. This kind of content should be considered just as Canadian with regards to other broadcast undertakings in English and French.
Thank you for the amendment, but the position of the government is to vote against it.
Senator Miville-Dechêne: I just want to clarify something: Are we in the subamendment? Are you proposing to get rid of this clause about ensuring the discoverability of Canadian — because this is what I’m seeing.
The Chair: We are in the subamendment, senator.
Senator Miville-Dechêne: Yes, but you read the subamendment where discoverability is still there. It seems to me that in the amendment, it’s not there anymore.
I’m sorry, I just want to clarify that.
Senator Simons: As I said, it’s a little complicated because Senator Wallin’s amendment has two parts. My subamendment is only to the top part. Yes, the word “discoverability” remains in my subamendment, which reads, “. . . ensure the discoverability of Canadian programming services and original Canadian programs in English and French . . . .” And then it would retain Senator Wallin’s suggestion in clause (r) to take out the phrase, “. . . and ensure that any means of control of the programming generates results allowing its discovery . . . .”
While I have the floor, I would just like to say in response to Senator Gold’s comments that I think the argument that this is somehow prejudicial to Indigenous languages is — I don’t want to say “disingenuous,” but let’s say the original language of the clause is far more prejudicial to Indigenous language than the suggested subamendment. To use that as an explanation is, I think, a bit of a red herring.
Senator Manning: Senator Simons mentioned that her amendment would allow for passive discoverability. The word “ensure,” to me, is not passive.
Senator Wallin: That’s to be eliminated.
Senator Manning: No, she wants to put the word in.
Senator Simons: So “ensure discoverability” in the first part — but I think that can be read to include —
Senator Manning: I’m just wondering if you would be open to a subamendment to your subamendment that would change the word “ensure” to the word “allow.” “Ensure” doesn’t give you room to move around. “Ensure” means it has to be there; it’s a guarantee, where “allow” gives flexibility. “Ensure” is a directive. It’s not a grey area.
Senator Simons: I’m not unfriendly to that subamendment with the proviso that if it means we have to wait half an hour for the Law Clerk and a printed copy, then I’m less enthused about it.
Senator Plett: I agree. Let’s just move it forward.
Senator Manning: I’d rather wait for a few minutes than try to straighten this out in three years’ time.
The Chair: Would you be amenable to that?
Senator Simons: I would be amenable to that but not at the risk of derailing the meeting in its first five minutes.
Senator Manning: Basically, I’m moving a subamendment to take out the word “ensure” and replace it with “allow.”
The Chair: This would be the benefit of sharing these and bundling up going forward.
Senator Klyne: Just for clarity, then, this is (7)(q)(i)? Rather than delete lines 31 to 34, you just want to change the word from “ensure” to “allow”?
Senator Wallin: It also stops at the words “Where this amendment —”
Senator Manning: Just a solid minute, now. I’m not dealing with Senator Wallin’s amendment.
Senator Wallin: Or even the other half of the first amendment.
Senator Simons: The sub-subamendment would read,“. . . allow the discoverability of Canadian programming services and original Canadian programs in English and French . . . .”
Some Hon. Senators: Agreed.
Senator Simons: Or to speak to Senator Gold’s concern, I suppose we could just say, “. . . allow the discoverability of Canadian programming services and original Canadian programs,” and then nobody’s language is discriminated against.
The Chair: Can you repeat your subamendment one more time?
Senator Manning: Well, Senator Simons just made it too wrinkly, but basically what I’m asking for is to replace the word “ensure” in Senator Simons’ subamendment to “allow,” so it would read, “. . . to allow the discoverability of Canadian programming services and original Canadian programs . . . ” and drop the words “in English and French.”
The Chair: That would be a new amendment, and the clerk is right, because that word is not in your subamendment text; it’s in a different part. You can move that later on, if you so wish.
I have a very quick question, Senator Simons. I’m just afraid that your subamendment, the way it’s proposed, gives the CRTC — the Canadian Radio-television and Telecommunications Commission — more power to manipulate algorithms, not less. That’s been my concern throughout the whole debate and continues to be a concern.
Senator Simons: That’s certainly not the intent of either my subamendment or Senator Wallin’s amendment. I suppose the question, though, in response to Senator Gold, if we drop down to the second half of Senator Wallin’s amendment in section (r), it clearly says, “. . . in both official languages as well as in Indigenous languages . . . .”
I don’t know if that is sufficient to put Senator Gold’s mind at rest that there is no intent to discriminate against Indigenous languages, which are not mentioned at all in subparagraph (7)(q)(i) of the bill.
I really do bristle at the suggestion that the intention here is to discriminate against Indigenous programming, because the original clause says nothing about Indigenous languages. If anything, I think, we’re giving more —
Senator Miville-Dechêne: Quickly, I will object to your subamendment, because I believe the intent of this particular clause here is to put the —“notamment” means “among other things” in the French language, which is a minority language in Canada. So to add English, which is not a minority language — it’s a wonderful language, but it’s not a minority language — changes the meaning.
I understand you want everybody to be on the same level, but this is not exactly the case, so I will object to your amendment, even though I respect you a lot.
Senator Clement: Mr. Ripley, what is lost here with this subamendment? I’m following up on Senator Miville-Dechêne’s comments about how the point of this is, we sense, to protect French more than English. What is lost if this subamendment and amendment go through?
Thomas Owen Ripley, Associate Assistant Deputy Minister, Canadian Heritage: Thank you, senator, for the question.
I have two observations on the proposed subamendment: One is that right now the wording is inclusive in that the first concept is original Canadian programs, and then that’s including original French-language programs, but it could also include others. As has been pointed out by some senators, I think Senator Simons’ proposed subamendment loses the inclusive nature of it in that it points only to English and French.
Then the second effect of the subamendment would be to lose the concept of “in an equitable proportion,” so it would simply talk about ensuring the discoverability of original Canadian programs in English and French without that additional qualifier.
Senator Clement: So what is the impact of losing the words “equitable proportion?” Can you give an example of what the impact would be?
Mr. Ripley: Thank you.
It is a bit challenging for me to speak to this because it originated with an opposition party, so it’s difficult for me to speak to their motivations.
One of the challenges with subparagraph (q) is that it talks about “. . . online undertakings that provide the programming services of other broadcasting undertakings . . . .” We’re really in a situation here where, again, this would be a service like Amazon Prime Video Channels or Rogers Ignite TV or something where you actually have TV channels of other services as part of that package.
For the most part, most of the subparagraphs speak to that concept of programming undertakings delivered by another broadcasting undertaking, except for this part about Canadian programs. There is a kind of mesh of two concepts that’s happening here in subparagraph (q).
“Equitable proportion,” again, speaks to, in a fair way, and my assessment would be that the mover of that was trying to get to the sense that the discoverability of Canadian programming services and original Canadian programs should be done in a fair way vis-à-vis non-Canadian services and programs on that product offering. It’s speaking to raising their profile in that context.
At the end of the day, these are policy objectives of the act, so they have to be actually matched with regulatory tools available to the CRTC further on at sections 9.1, 10 and 11.1.
[Translation]
Senator Cormier: I will be voting against the subamendment. As you can appreciate, obviously, the discovery of French-language productions online is a significant challenge that English-language productions do not face, as Senator Miville-Dechêne pointed out. While I respect English-language productions, I will be voting against the amendment for that reason.
[English]
Senator Wallin: Yes, could we just have a definition, then, from Mr. Ripley of “equitable?” That’s the issue. We don’t know what that word means or what it intends. I know it wasn’t a government amendment. I know it was an opposition amendment, but if you’re going to support it, then —
Mr. Ripley: Thank you, senator.
“Equitable” means “fair,” so in a fair proportion.
Again, I believe, at the end of the day, what this is saying is that the CRTC should seek to ensure that online undertakings that distribute the programming of other online undertakings — so, again, that would be a service like Amazon Prime Video Channels or Rogers Ignite TV or the equivalent Bell service — one of the policy objectives should be ensuring that the programming services of Canadian TV channels are discoverable and that original Canadian programs, including French-language programs, are discoverable in a fair, balanced and equitable proportion.
Senator Wallin: Equitable is not the same as fair.
The Chair: Colleagues, we’ve heard both sides of the coin here.
It’s time for the question on Senator Simons’ subamendment. Are colleagues in favour of this amendment?
Some Hon. Senators: Nay.
Some Hon. Senators: Yea.
The Chair: I think the nays have it. Accordingly, it’s defeated.
Now we move to Senator Wallin’s main amendment.
Senator Wallin: I will then propose, as we discussed earlier, separating out the two proposed changes in paragraph (q) so that the amendment to paragraph (r) would stand alone. That would then reads, “. . . online undertakings shall clearly promote and recommend Canadian programming, in both official languages as well as in Indigenous languages,” and remove the rest of that subparagraph, which reads, “. . . and ensure that any means of control of the programming generates results allowing its discovery . . . .”
Again, it’s very hard to mandate results or control the output of a directive.
The Chair: Are you amending your amendment?
Senator Wallin: I just want to separate them out. Do we have to vote on the whole thing? Before we vote on the entire thing, Senator Simons was focused only on subparagraph (q)(i), right?
The Chair: That sounds to me more like a different amendment than a subamendment.
Senator Wallin: I had proposed them together, which is the problem, because it’s all under paragraph(q).
Senator Simons: Might I suggest that we vote on Senator Wallin’s original amendment? The change to paragraph (r) is exactly the same as my next amendment.
Senator Wallin: Exactly?
Senator Simons: Yes.
Senator Wallin: Okay, great.
Senator Simons: If we look at the roadmap, the text of my amendment — number 23, which we won’t get to until we do Senator Miville-Dechêne’s amendment — proposes replacing lines 18 and 19 in clause 3 on page 9. It’s functionally the same thing.
Senator Wallin: Having rejected the first half of this amendment, senators are not going to then vote for the whole thing.
Senator Simons: Yes. I don’t know.
Senator Wallin: I’m not sure how to do this, clerk, because I had proposed it as one.
The Chair: The thing is, we’ve commenced debate on this amendment, Senator Wallin. We had a subamendment. To re-engineer the amendment now would be inappropriate. What you’re proposing is not a subamendment; it’s a new amendment, in essence.
There are two options here. We’ve had debate on this, so we can vote on this amendment and then you can propose a new amendment, or you withdraw this amendment and propose a new amendment.
Senator Plett: Why can’t we just split the vote?
The Chair: Because we already have an amendment on the floor. It would require a subamendment. What Senator Wallin is proposing is not, in my view — unless somebody believes otherwise — a subamendment.
Senator Wallin: I will withdraw and immediately propose, then, the amendment to paragraph (r).
The Chair: You can do that.
Senator Wallin: It is already on the books, so we shouldn’t have to print anything because it was on the same page.
The Chair: Can we have what you’re proposing in writing, senator?
Senator Wallin: It’s right here. It’s this part right here.
The Chair: The senator is withdrawing this amendment and proposing this new amendment.
Senator Wallin: I withdraw the amendment on the floor and replace it by proposing that paragraph (r) now read, “. . . online undertakings shall clearly promote and recommend Canadian programming, in both official languages as well as Indigenous languages . . .” and delete the rest of paragraph (r), which reads, “. . . and ensure that any means of” —
Senator Simons: No, we can’t do that because Senator Miville-Dechêne’s amendment comes before it. We need to vote on the top half, because the bottom half is —
Senator Wallin: It was one amendment. You only chose to talk about the top half. I’m just trying to solve the problem here. I don’t care how we do it.
Senator Omidvar: Chair, as a mere interloper in this committee, I would suggest that we deal with subparagraph (i) of subsection (7) first, then move on to others, which is Senator Wallin’s amendment, amended further by Senator Manning to add the word “allow.”
The Chair: He cannot provide a subamendment that way because it does not deal with Senator Wallin’s amendment. Now she’s withdrawn that amendment and she’s proposing a new amendment.
Senator Wallin: I don’t know how else to do it. If anybody has any advice —
The Chair: Which is fine. There is an objection to the amendment. She has the right to move it that way.
Senator Simons: I don’t object to the amendment. It’s exactly the same wording as mine, then. I support it. I just think we’re moving out of order.
Senator Wallin: Okay.
Senator Simons: Don’t we have to do Senator Miville-Dechêne’s amendment?
Senator Wallin: Which is to what section?
Senator Miville-Dechêne: Let’s deal with this one. Can we vote on your amendment?
Senator Wallin: No. What we’re trying to determine is when I move my amendment again.
Do you have something before paragraph (r)? That’s the question.
Senator Miville-Dechêne: No. My amendment is about a totally different topic.
Senator Wallin: Okay. So then —
Senator Simons: On the roadmap, it comes before this one. What Senator Wallin is proposing is the same wording as my amendment.
Senator Wallin: It’s to this one. Perhaps I’m still in line, is the question, before Senator Miville-Dechêne. I don’t know how I could be behind her.
Senator Manning: Mr. Chair, wherever you’re ready.
The Chair: My question to you, Senator Simons, is: If part of what she’s proposing is similar to the language of what you’re proposing, what’s the issue? Let’s have the debate.
Senator Simons: The issue is that then we will have to revert to do Senator Miville-Dechêne’s amendment. I totally support this language. I’m pointing out that you’re skipping something because Senator Wallin —
The Chair: Senator Miville-Dechêne’s amendment has nothing to do with this amendment, from my understanding.
Senator Simons: No, it doesn’t.
Senator Wallin: And it comes later.
Senator Simons: The problem is that Senator Wallin’s amendment amended two completely different sections.
Senator Wallin: It was all in subsection (7), which is why we were told to do it that way.
The Chair: But they’re very interrelated, Senator Simons; there will be some overlap.
Senator Simons: As long as you’re prepared to allow —
Senator Miville-Dechêne: Mine is after the —
Senator Wallin: Yes.
Senator Simons: Okay. On the roadmap, yours is second —
Senator Miville-Dechêne: Yes, it is after.
Senator Simons: Fine. Then I’m —
The Chair: The only thing that might happen is that if we address the issue you are addressing in your amendment now, we eliminate one issue.
Senator Simons: Yes.
Senator Wallin: We might.
Senator Simons: Yes. Let’s go then, if that —
Senator Wallin: Then I withdraw the overall amendment and go to paragraph (r) in the amendment, which would delete these three lines and pick it up with these lines.
The Chair: Colleagues, you have Senator Wallin’s original motion before you. She is withdrawing that amendment and proposing just part (b) of her amendment.
Senator Wallin: If everybody can live with that, we won’t have to reprint it.
Senator Simons: I fully support this amendment. Indeed, it is exactly the same as the text of my amendment that we will now be able to drop.
The Chair: Senator Manning, do you support this amendment?
Senator Manning: First of all, I’m delighted that we’re all agreeing on something. It sounds like we’re agreeing, but I’m so glad we’re not disagreeing because it takes so long.
I want to make sure that my subamendment will come after Senator Wallin’s.
The Chair: Senator, your subamendment doesn’t exist. But if you want to add — if you want a new amendment, you can move a new amendment.
Senator Wallin: But he’s amending the first paragraph.
The Chair: To this one, but we’re not dealing with the first paragraph.
Senator Wallin: That’s why he’s proposing an amendment.
The Chair: So you’re proposing a subamendment to deal with it?
Senator Wallin: It’s not in my part. It’s in the first part.
Senator Manning: Mine is an amendment, not a subamendment.
The Chair: Senator, that is an amendment and that will follow.
Let’s focus the question on this, colleagues. We are ready for the question.
Are honourable colleagues in support of the amendment moved by Senator Wallin? Are you in favour of this amendment?
Some Hon. Senators: Yea.
Some Hon. Senators: Nay.
The Chair: I think the “yeas” have it.
Senator Gold: No. Recorded vote.
The Chair: Recorded vote.
[Translation]
Vincent Labrosse, Clerk of the Committee: The Honourable Senator Housakos?
Senator Housakos: Yea.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Nay.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: Nay.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: Nay.
Mr. Labrosse: The Honourable Senator Gold, P.C.?
Senator Gold: Nay.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: Nay.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: Yea.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Nay.
Mr. Labrosse: The Honourable Senator Omidvar?
Senator Omidvar: Nay.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yea.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: Nay.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yea.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yea.
Mr. Labrosse: The Honourable Senator Woo?
Senator Woo: Nay.
Mr. Labrosse: Yeas: 5; nays: 9; abstentions: nil.
[English]
The Chair: Accordingly, the amendment is defeated.
Colleagues, Senator Manning’s amendment is being drafted by the Law Clerk as we speak. To save time now, we will move on to the next item, which is Senator Miville-Dechêne’s amendment.
Senator Miville-Dechêne, you have the floor.
[Translation]
Senator Miville-Dechêne: I should start by reading the amendment. Does it have to be handed out? It would be easier for everyone to follow if they had it in front of them.
The Chair: I agree completely.
Senator Miville-Dechêne: Here it comes.
To start, I would say that the amendment is tied to something I have been advocating for in the Senate for two years, protecting children from exposure to pornography.
In this case, with Bill C-11, we are fortunate enough to be discussing the powers of the CRTC, and that’s why I am proposing this. Now that everyone has the amendment, I’ll read it.
[English]
I move:
That Bill C-11 be amended in clause 3, on page 8, by adding the following after line 46:
“(r.1) online undertakings shall implement methods such as age-verification methods to prevent children from accessing programs on the Internet that are devoted to depicting, for a sexual purpose, explicit sexual activity;”.
[Translation]
I’ll give you the short version of my arguments, since we have a limited amount of time. Here’s the idea behind the amendment: it targets adult content, pornographic material distributed on online platforms.
As you know, the CRTC already has authority over adult content available through traditional broadcasters, namely specialty channels subscribers have to pay for. That sexually explicit content is already subject to rules. Keep in mind that the term “sexually explicit material” does not refer solely to images of naked people. The amendment refers to sexual activity. Every definition of that term refers to close-up shots, sexually explicit activity. This isn’t about mere nudity
To the extent that Bill C-11 seeks to confirm and broaden the CRTC’s authority over online platforms — that is what the bill does, after all — it’s only appropriate that the CRTC’s powers would extend to adult content online. What this amendment would do is simply make sure that this type of adult content was available only to adults, whether it was distributed online or by traditional broadcasters. In no way shape or form is this about censorship. All I am trying to do is ensure that online adult content is treated the same as offline adult content, which is available only to those 18 or older.
I want to remind the committee of two things. During our meetings on the bill, we heard from Peter Menzies, the former vice-chair of the CRTC. He explicitly said that Bill C-11 gave the CRTC the power to regulate all online audiovisual content. Therefore, the CRTC can use that authority to regulate this content.
We received four briefs on the matter from groups who were supportive of the amendment. I’ll summarize just one of them for you. It was submitted by the Canadian Centre for Child Protection and called on Canada to follow in the footsteps of countries such as Germany and France, which have implemented regulations. The centre said that Canada should require online platforms that provide adult content to implement age verification or assurance methods. Just as we protect children from the risks of tobacco, alcohol and marijuana or even violent movies, we should take steps to properly protect children from explicit sexual content online.
I will leave it there. You have access to a total of four briefs and witness evidence to support this rather short amendment. The CRTC will be the one to decide how this should be implemented, what methods should be used. Basically, this instructs the CRTC to take action, but it doesn’t tell the commission exactly how to deal with this highly technical matter. There you have it.
[English]
Senator Gold: Thank you, Senator Miville-Dechêne, for this. Keeping our children safe is not only a priority for this government but for all of us and any government. But in the opinion of the government, Bill C-11 simply isn’t the right vehicle to accomplish this important objective and this important work.
Indeed, the government has some real concerns about the scope and the application of this proposed amendment in the context of the overall structure of Bill C-11. The Government of Canada is looking to introduce legislation to address potential online harms with the goal of keeping all Canadians safe online, including being safe from the kind of harm that this amendment would propose. In the government’s view, this would be the most appropriate forum, in the context of that legislation, to discuss this important issue. For those reasons, the government cannot support this amendment.
Senator Plett: I will be brief, but I think that every platform that we could possibly imagine should be a platform that we would use to prevent the exploitation of children and pornography that children have access to — anything along that line — and if we repeat it in five different bills, we should be happy to do that. I find it very strange that we have a government that is saying that any platform is not the correct platform to prevent in any way at all the exploitation of children. I certainly applaud Senator Miville-Dechêne’s efforts in this. I certainly plan on voting in favour of this, and I would hope that this government would change its attitude that some platforms are the right platforms to protect children and some are not.
Senator Clement: I have a question for Mr. Ripley. Do you think it could be interpreted as blocking educational content? That’s the only concern I would have with this one, because if there is discussion around the sexual health of young people, for example, you might have a website that might have some sexual content for the purpose of education.
Mr. Ripley: Thank you for the question, Senator Clement. To situate senators, Senator Miville-Dechêne is proposing the addition of a policy objective to the act, so the operationalization of this would depend on how the CRTC actually chose to implement it. She has spoken to her motivation, which, again, based on my reading of the amendment as tabled, aligns with how she has described it, particularly the element of the clause that says, “for a sexual purpose.” But the actual way in which this would be implemented would depend on how the CRTC chose to do that. Obviously, as Senator Miville-Dechêne pointed out, there are already ways that they do that with respect to standards classifications and the warning that you get when you’re going to consume sexually explicit material. There are already some practices that are commonly used in the industry.
Senator Klyne: I understand what is being said, but also to what Senator Plett said, I interpret those as two different things. One is the explicit content of children or minors, where this is about adult content that does not specify that there are children involved in the explicit sexual content.
Senator Plett: The amendment does.
Senator Klyne: It does?
Senator Plett: It says, “. . . age-verification methods to prevent children from accessing programs . . . .”
Senator Klyne: From watching it.
Senator Plett: From accessing programs — children.
Senator Klyne: I agree with what you’re saying. I would be more warm to that one.
Senator Miville-Dechêne: You are right that it is two different issues, but we’re talking about exposure of children to adult-only material.
Senator Klyne: Intended for adults.
Senator Miville-Dechêne: Yes. It’s a different question if there are children in the adult material. This is a criminal offence, and it’s a different thing altogether, and there are laws —
Senator Klyne: I understand.
Senator Miville-Dechêne: Okay. Great.
Senator Klyne: This doesn’t take away from what Senator Plett is saying. That’s not what her motion is.
Senator Gold: Again, just to be clear, it’s not the position of the government that appropriate measures should not be put in place to protect children in the online environment. I do want to point out — and I will say it neutrally — that Senator Plett’s proposition and support for this amendment, in fact, has the following implications: simply, that this bill should therefore regulate all audiovisual content on the internet, and the CRTC would be required to more closely monitor online content in a way that it isn’t intended to do — despite some of the rhetoric throughout this committee process — and doesn’t do under Bill C-11. This is an expansion of the role of the CRTC over online content on the internet, which is really not the thrust of this bill. It’s for that reason, despite the laudatory objectives of the amendment — which the government supports — that it is inappropriate, in the government’s view, that it be included in this bill as a new policy directive to the CRTC.
The Chair: On that point, I have a brief question for Mr. Ripley. Of course, it has been an ongoing debate, and the government continues to make the claim that Senator Gold just did — that the CRTC doesn’t currently have the power in the Broadcasting Act to monitor content.
We have had the chair of the CRTC before this committee, who acknowledged after a number of questions that he does already have the power to monitor content. We gave specific examples of a few months ago where the CRTC intervened with Radio-Canada and other instances.
Mr. Ripley, do you agree that the Broadcasting Act, in its current and amended forms, gives that power to the CRTC if they choose to exercise it?
Mr. Ripley: Thank you for the question, chair.
The way the industry is currently set up is that there is recognition that programming broadcast on TV channels should abide by certain industry and broadcast standards.
The way that is organized right now is that you have an industry-led organization, the Canadian Broadcast Standards Council, that has developed certain codes relating to things like violence and equitable portrayal, and the expectation is that TV channels and broadcasters respect those codes.
The bill right now, recognizing again that certain services such as social media services may be subject to it, is very clear that the CRTC does not have the power to extend those broadcast standards to social media services, and the way that is clear in the bill is because that power only extends to services where those services have programming control. It’s recognized that social media services do not have programming control over the content posted to their services, so the CRTC would not have the ability, for example, to extend broadcast standards to social media services.
The Chair: So you’re saying that, under this bill, they won’t have that power?
Mr. Ripley: They will not have that power, no.
The Chair: Thank you.
Senator Miville-Dechêne: To conclude, on the question of scope, obviously, I have a difference of opinion with Senator Gold. If you look at the clause-by-clause study in the House of Commons, where an amendment — not the same amendment, but one that had some of the same characteristics — was presented. The Government Representative never said that this was out of scope, so I’m wondering why this is happening now.
I also think that because we’re extending the CRTC power on online enterprise, the idea is to extend the standards, as you’re saying, and at this point there are no standards. There are no protections. There is nothing.
It is a policy directive that I’m trying to present here, which gives the CRTC a lot of leeway on how to do it.
Finally, Senator Gold, if I was convinced that the government would address pornography in the online bill, things would probably be different, but I have never had any assurance that this was part of the priorities of the government. I think protecting children is an urgent matter and it is why I’m taking advantage of the reopening of the Broadcasting Act to propose this amendment. Thank you.
The Chair: Thank you, senator. We have an amendment moved by the Honourable Senator Miville-Dechêne that Bill C-11 be amended in clause 3 on page 8. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yea.
Some Hon. Senators: Nay.
The Chair: I think the yeas have it.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yea.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yea.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: Yea.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: Nay.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: Nay.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: I’m going to abstain.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: Yea.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yea.
Mr. Labrosse: The Honourable Senator Omidvar?
Senator Omidvar: I’m going to abstain.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yea.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: Yea.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Nay.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Nay.
Mr. Labrosse: The Honourable Senator Woo?
Senator Woo: Nay.
Mr. Labrosse: Yeas: 7; nays: 5; abstentions: 2.
[English]
The Chair: Accordingly, the amendment is passed.
Senator Simons: My next amendment falls off.
The Chair: Would you like to withdraw it?
Senator Simons: I don’t really wish to withdraw it, but there’s no point in — we just voted on it, so —
The Chair: Yes, we just did.
Senator Simons: We went out of order, and no one except me seemed to care that we are going out of order.
The Chair: We did bring up the point that we were going out of order, senator, and there was no disagreement at the time. We agreed that the language will be looked at accordingly.
Senator Manning, you can move your amendment.
Senator Manning: I move:
That Bill C-11 be amended in clause 3, on page 8, by replacing line 31 with the following:
“(i) allow the discoverability of Canadian program-”.
I want to get back to what I mentioned earlier. The reason I was putting this forward is because I felt the word “ensure” was too prescriptive and that “allow” would give the CRTC at least some flexibility in ensuring the discoverability of Canadian programming services.
We have had numerous witnesses who raised the challenge that this bill poses when it comes to clarity, certainty and stability in Canadian broadcasting. Concerning the impact on consumers, John Lawford, the Executive Director and General Counsel of the Public Interest Advocacy Centre, told our committee:
Consumers naturally resist the insertion of CanCon in their automated plays or algorithmic suggestions of platforms such as YouTube, and digital-first creators are concerned that such discoverability tools will backfire and reduce their audiences.
In terms of the impact on creators, digital creator Scott Benzie said quite clearly that:
. . . dynamic changes to algorithms are off the table, because messing with them is messing with Canadian businesses and access to their audiences.
My amendment will give flexibility to that instead of being so prescriptive.
Senator Gold: Thank you. The government opposes this amendment. By changing the requirement for platforms to “ensure” discoverability to simply “allow” discoverability, it creates more than flexibility, it creates a huge loophole that allows platforms to avoid properly showcasing Canadian content. To say that it is allowed to doesn’t mean that it will.
The truth is that in certain contexts, especially French-language programming, as Senator Cormier has pointed out, it’s a challenge for people to find it. The intent of this act and this provision is to ensure not that people are forced to watch it, but simply that it is available to them and that they can find it in an equitable and fair manner given the context of the particular platform.
The current bill still allows for flexibility and for a collaborative approach to determine the best ways to showcase Canadian talent. It’s not simply algorithms; it can be other ways, as we know from our own experience online. Platforms are not the same, and the bill already recognizes that one size does not fit all.
For all of these reasons, the government cannot support this amendment.
[Translation]
Senator Cormier: In French, the verb “permettre” can mean “to let something happen,” “to not prevent it.”
It’s not very proactive, so I will be voting against the amendment.
[English]
Senator Quinn: I have a question for Mr. Ripley. When we say “ensure” the discoverability of Canadian programming — and I realize there are different methods — it’s really about the key result, I would think. How do you ultimately get to that key result? We’re back to the discussion about discoverability. How do you ensure that through marketing or billings or whatever? If you’re not getting that key result, doesn’t it all come back to the algorithm?
Mr. Ripley: Thank you, Senator Quinn, for the question. The distinction here, which I think senators have already spoken to, is the distinction between a positive obligation versus a permissive indication. The way this plays out in practice would be that the CRTC is looking to fulfill this policy objective, and it would need to use the regulatory tools further on in the bill and seek to identify whether certain tools can be used in a positive obligation type of way.
I think there is a spectrum of things that can be used in this space, including promotion and showcasing on landing pages. Again, the primary piece of this objective is about programming services. This is really about the distribution of TV channels on online undertakings, like Amazon Prime Video Channels, Rogers Ignite TV or Bell.
Senator Quinn: I understand the explanation, but I’m coming back to the simple word, “ensure.” In government language, that means the key result has to be achieved or people are held to account for the non-achievement of the result. It is an ultimatum that you will ensure that discoverability is paramount in receiving the result. If that’s what the government intends, fair enough, but that then brings into question the discussions we’ve had throughout on discoverability and manipulation of algorithms. I’m sorry. I just had to come back to that, because to me, that’s what it says.
Senator Wallin: I will echo what Senator Quinn has said. I know we’ve had this discussion before, but the language is unclear, even though the preceding paragraph says, “online undertakings that provide the programming . . . .” We’re not sure whether “online undertakings” are individuals or whether they are platforms, because in the definition they can be both. So that’s where the problem of the word “ensure” comes in. That is why Senator Manning, I assume, has raised it, and it reflects Senator Quinn’s concerns and certainly mine because I still don’t think we’ve clarified that.
The Chair: I also support this amendment. At the end of the day, I never believe we should be determining the desired outcome of anything as governments. I have a great deal of difficulty with that. Respecting consumer choice is something that this bill doesn’t do, and I think this amendment is just one small step towards doing that.
I see there’s nobody else on debate, so I will call the question. It is moved by the Honourable Senator Manning that Bill C-11 be amended in clause 3, on page 8, at line 31. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Nay.
Some Hon. Senators: Yea.
The Chair: I think the nays have it. We will have a recorded vote.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yea.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Nay.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: Nay.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: Nay.
Mr. Labrosse: The Honourable Senator Gold, P.C.?
Senator Gold: Nay.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: I’m going to abstain.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: Yea.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Nay.
Mr. Labrosse: The Honourable Senator Omidvar?
Senator Omidvar: Nay.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yea.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: Yea.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yea.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yea.
Mr. Labrosse: The Honourable Senator Woo?
Senator Woo: Nay.
Mr. Labrosse: Yeas: 6; nays: 7; abstentions: 1.
[English]
The Chair: Accordingly, the amendment is defeated.
Senator Simons: There is an amendment of mine that got left off the roadmap.
The Chair: What’s the label number, senator?
Senator Simons: Is this the correct one? Okay. This is the amendment in clause 3, on page 9. It was my other one that got left off. It’s going to be distributed, right?
The Chair: Can you repeat the label of the one that was left out?
Senator Simons: Yes. The one that was left out was the duplicate of Senator Wallin’s. That was what I thought I was withdrawing. The amendment we’re keeping is PS-C-11-3-9-18.
The Chair: That’s the one we’re at, senator.
Senator Simons: This is an amendment to SB-5.
The Chair: That’s being distributed right now. Just one second, senator. I’m making sure everyone has your amendment before them.
Senator Simons: My apologies. There have been a lot of —
The Chair: We have been a little bit all over the place.
Senator Simons: I move:
That Bill C-11 be amended in clause 3, on page 9, by replacing lines 18 and 19 with the following:
“the democratic process and support local journalism, and”.
This deals with a clause that was amended in the other place. It deals with community participation and community broadcasting. It imports into the legislation the phrase “support countering disinformation.” To me, this is a very tricky term to introduce into the legislation at this late date. There’s no other reference to disinformation in the act. There’s no definition of disinformation. The word itself has become so politicized that it has become a lightning rod. One man’s disinformation is another man’s propaganda is another man’s accurate information. To suddenly make the CRTC responsible for figuring out what is disinformation and what is not is inappropriate in this act. If the government wants to deal with online harms at a future date, that is different legislation. The CRTC has never had an ambit to regulate content, and I think putting the CRTC in any way in control of what is or isn’t disinformation is a dubious proposition.
So I propose in this amendment to remove the word “disinformation” and to instead, as you will see, adjust the clause slightly to say, “through community participation, strengthen the democratic process and support local journalism . . . .” I can’t read the mind of the person who added this to the act, but I suspect this amendment is friendly to their intentions. Saying we want community broadcasting to support local journalism is an entirely different thing than saying we want it to counter disinformation. I just think the phrase “disinformation” opens up the legislation to Orwellian conspiracy theorizing, and we don’t need any more of that.
Senator Cormier: Thank you for that, Senator Simons.
I have a question for Mr. Ripley. In what context was “disinformation” brought up? In what type of discussion was it brought up in the other place?
Mr. Ripley: Thank you, Senator Cormier.
This amendment was grounded in seeing a greater recognition of the community element in the broadcasting system, so it is a recognition of community and campus broadcasters. The origins of this language that you see here are really from community broadcaster stakeholders, and this was their articulation of their role or how they see their role in the system.
Senator Cormier: What would the amendment propose? When we speak about “democratic process,” would that be clearer for you? What does it imply?
Senator Simons: The language is already in there.
Mr. Ripley: Yes. The distinction that Senator Simons is proposing is whether it is a question of wanting to support community broadcasters in promoting and creating local news as a source of reliable information, or if it is a question of wanting to promote that they use strategies to counter disinformation, which are different kinds of strategies, such as civic and digital literacy and those kinds of things. I agree with Senator Simons that there’s nowhere else in the act that you see the reference to “disinformation.” This is the only place. Otherwise, the act is generally more about promoting the production of certain kinds of programming.
Senator Cormier: Thank you.
Senator Quinn: I have a question, if I may, for clarification about the term “local journalism.” Why not “local broadcasting”? I only ask that because I’m not in the business and you are, or have been.
Senator Simons: There is an easy answer. The entire act is about broadcasting. We don’t need to say “broadcasting.” This isn’t about print journalism. It’s a broadcast act.
“Local journalism” is a phrase that’s used a lot in other CRTC documents, as some have pointed out to me, and in corollaries like the Local Journalism Initiative. The hairs on the back of my neck go up when I see in a piece of government legislation that, somehow, the CRTC or, indeed, local or campus community broadcasters are supposed to be countering disinformation. That is a completely separate thing. If they want to draw on the kind of community literacy and online educational programming that Mr. Ripley is mentioning, that’s lovely; I support them in doing that.
I don’t think that should be their legislative mandate, because I come from the province of Alberta and I have seen a government there define “disinformation” in a way that might be very different to the way I would define “disinformation.” I think that it is like a dose of political venom in the act. I do not think the state should be in the business of judging what is disinformation.
It also puts an extraordinary obligation on small community broadcasters. They’re the only ones, apparently, who are supposed to be countering disinformation, unlike anybody else in the journalism ecosystem.
This was a well-intentioned amendment in the other place. It’s poorly drafted to do the job it was intended to do. I hope the government will also support this amendment, because this is a much better articulation of the intended goal of community broadcasting.
Senator Quinn: Thank you.
Senator Klyne: As it is in the bill, the objective there is to counter — if you’ll pardon the expression — “fake news.” Senator Simons, does local journalism capture citizen journalism?
Senator Simons: The point of this clause is to deal with community broadcasters.
Senator Klyne: Right. How do you block —
Senator Simons: Community broadcasters, whether that’s community —
Senator Klyne: Are citizen journalists not part of the community?
Senator Simons: No. Anybody can call themselves a citizen journalist. Anyone with a Twitter or Instagram account can say they are a citizen journalist. Many people who are self-appointed citizen journalists are not exactly countering disinformation, if I can put it that way.
Senator Klyne: Exactly, that’s the point.
Senator Simons: That is exactly why this language is so toxic and why I think that the focus of the clause is to strengthen community journalism and community access, whether that’s in a small rural community where somebody gets an hour on the radio every week to talk about the fishing or hunting report, a campus radio station or a local television cable channel where you get to have your cable cooking show about the cooking of Kerala state — whatever it is.
It is not the job of small, community-access broadcast operations to counter disinformation. We are not asking in this bill for the CBC or Global to counter disinformation, or private broadcasters. We have only assigned this awesome task to community broadcasters. It doesn’t make any sense. Let them focus on their job, which is to do community journalism.
Soon enough we’ll get to debate disinformation, but not today.
Some Hon. Senators: Question.
The Chair: Senator Clement wants to ask a question.
Senator Clement: My question is for Senator Simons.
I support local journalism, obviously. In Cornwall, for example, our local journalists mean people can be in a safe place, their community. They can trust information that is coming from their local journalists.
The issue is disinformation. I use that word every day. I hear it every day. I understand that it’s contentious, but it’s certainly in the way we speak. What I want to see is us naming what the problem is. To me, disinformation is naming the problem. We’re supporting local journalism because — I’m supportive. I just want to know further, from you, how you —
Senator Simons: I spend an extraordinary amount of my time on social media doing what I can to counter disinformation. Disinformation, especially propagated by international agents, whether that’s coming from Russia or China, is the bane of our existence.
I think that putting that one phrase in this section, which deals exclusively — not with the local Cornwall television station. Community broadcasting is very specific. This is not-for-profit, small; we defined it earlier as run by not-for-profit boards. We’re talking about a very particular subset. It is absurd to give them the sole responsibility to counter disinformation.
By all means, when the government has its online harms legislation before us, and poor Mr. Ripley is back here, we can talk about that then.
This is wholly inappropriate in this context. I beg of us, given the amount of disinformation about this bill circulating out there, and given the wild conspiracies that have flooded our inboxes with tens of thousands of emails from people who think that this bill is a plot by the World Economic Forum and it’s part of an illuminati Jewish conspiracy — and, believe me, I get those emails — let us not give credence to them by making it sound like the government is giving community broadcasters the role to define what is and is not fake news.
Senator Clement: Thank you, senator.
Senator Wallin: I echo everything that Senator Simons just said, as a practitioner for 40 years. Thank you.
The Chair: It is moved by the Honourable Senator Simons that Bill C-11 be amended in clause 3, on page 9, at line 18 — may I dispense?
Some Hon. Senators: Dispense.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Agreed. Carried unanimously.
Honourable colleagues, shall clause 3, as amended, carry?
Hon. Senators: Agreed.
The Chair: Clause 3 is carried.
Some Hon. Senators: On division.
The Chair: On division. Now we’re getting to the fun stuff.
Senator Simons: Mr. Chair, before we go on, is there any way, given the overlap in all of these amendments to clauses 4.1 and 4.2 — I don’t know. It would be totally irregular to have some kind of discussion in which we figured out what we wanted to do, but there’s going to be a tremendous amount of overlap in these.
The Chair: That’s why there was agreement yesterday to share the amendments. As you see, today was the first step. We got the map forwarded.
The clerk will, throughout the process of today, go through and start putting asterisks to amendments that are overlapping. We’ll have an opportunity amongst the senators to have those discussions before we go to the subsequent meetings that follow tonight and the rest of the week. Hopefully, we’ll be able to come to some consensus when there is some overlap before we get to the committee stage.
We now have an amendment from Senator Manning.
Senator Manning: Thank you, Mr. Chair.
I move:
That Bill C-11 be amended in clause 4,
(a) on page 9, by deleting lines 30 to 37;
(b) on page 10, by deleting lines 9 to 32.
The purpose of my amendment is to remove what has become known as the exception to the exemption for user-generated content, or UGC. While clause 4 initially rules outs the regulation of user-generated content, it goes on to give exceptions to that exemption, which has the opposite effect of not regulating user-generated content.
One of the main areas of contention in the bill has been around user-generated content. The government has continually claimed that UGC is not captured but at every opportunity has failed to clearly exempt it in the language of the bill.
The minister, as recently as in his appearance in front of this committee on Tuesday, November 22, kept saying that “. . . the platforms are in; the users are out.” However, when you’re regulating platforms that feature user-generated content, you’re regulating the content and the creators. There isn’t one way or the other.
During his testimony, the minister also kept referring to the three criteria that the CRTC must consider in regulating user-generated content. The emphasis there is on the word “consider.” They can consider it and move on. Those criteria are not determinative; they are not binding.
Each and every digital creator who has appeared before this committee has said that the way the legislation is written, there’s no doubt that their content would be captured as a result. The current chair of the CRTC has acknowledged it will be captured. Former chairs and vice-chairs have testified it will be captured. The platforms have said it will be captured. Legal experts have said it will be captured. The only people saying it doesn’t matter are the minister and, I think, Senator Dawson.
I think there are a few members of this committee who don’t believe that it doesn’t matter. Digital creators have come before the committee and practically begged us to amend this part of the bill. They told us that contrary to the government’s claim that it will help creators, this bill will force them out of business or force them to relocate their businesses. Colleagues, I believe there’s a high risk that regulatory power will step into a breach the legislation creates, and hopefully this amendment will close that breach.
Senator Gold: The government opposes this amendment. This really would, in a fundamental way, undermine one of the key objectives of the bill.
Effectively, this would exclude social media platforms like YouTube from the reach of this act. This is a place where more than two thirds of Canadians go to listen to music and to stream music. If Canadians go to music in such large proportions to listen to the latest albums, if we still call them albums — or music videos or movies or TV shows or clips from TV shows — as many of us do, should these platforms not face similar obligations that would be borne by providers and services, for example, like Spotify, which is a popular online music service?
This amendment would perpetuate an unlevel and unfair playing field for online broadcasters. Online platforms are constantly evolving. To exclude social media entirely from the Broadcasting Act simply doesn’t reflect the actual trends we’re seeing on these social media platforms, whether it’s YouTube Music, TikTok or Stingray partnerships.
The government opposes this fundamentally. I’m not going to repeat all the things the government has said in the course of the testimony. This really does undermine an important objective of this bill. We can’t support the amendment.
Senator Simons: I think it is extraordinarily important that we send a strong message that user-generated content is not included in the ambit of this act. Unfortunately, I won’t be supporting this particular amendment because I think it is too blunt a tool, for the reasons Senator Gold has articulated.
I wanted to put on the record that eventually we’ll get to the amendment that Senator Miville-Dechêne has crafted, with some help from me and my office, in which we think we have solved the problem of how to scope out user-generated content but still capture the big YouTube Music channels.
Although I agree with three quarters or maybe 90% of what Senator Manning has just said, I just wanted to explain why I won’t be supporting this amendment, because I think we have found a way to thread the needle.
Senator Quinn: I withdraw, based on what Senator Simons said. I’m waiting to see how that fabric is sewn together. Thank you.
The Chair: I support Senator Manning’s amendment. I think it is blunt. I think it is unequivocal. The central debate that’s been going on at this committee since the beginning of Bill C-11 has been this feeble attempt by the government to convince people that platforms are in and creators are out, and there’s been no sign whatsoever throughout the process that the government is serious about that.
I’ve said it before and I’ll say it again: I get a sense that the government reserves a right to do tomorrow what they promise not to do today. We’ve heard it from the minister and from officials.
Are digital creators in or are they out? We need to be blunt in this legislation. We don’t need to thread the needle. We need to be black and white. This touches hundreds of thousands of Canadians.
You’re right, Senator Gold; these are the individuals right now that are growing by leaps and bounds with their businesses and have been spreading Canadian culture exponentially around the world. I think we have to protect digital creators. I think this amendment is consistent in that vein. For that reason, I will support the motion.
Senator Plett: I have a question for Mr. Ripley, if I could. Would you agree, sir, that were this amendment to be adopted, individual creators would feel they had more certainty under this legislation? Would we not be squarely addressing that issue?
Mr. Ripley: Thank you, Senator Plett, for the question. The effect of this amendment would be to exclude everything uploaded to a social media service. That would include, from the government’s perspective, commercial content uploaded by what platforms would call institutional users — so that could be record labels or broadcasters — and it would also exclude content uploaded by digital-first creators, as well as Canadians. So it would effectively exclude all content uploaded to a social media service from the ambit of the act.
Senator Plett: We have had many creators before our committee with strong legal advice that these provisions in the bill scope them in. Do you believe their legal advice is correct?
Mr. Ripley: As this committee knows, there was a big debate in the previous Bill C-10 context when the House committee chose to repeal section 4.1. When this bill, Bill C-11, was re-tabled, the government intentionally chose to include section 4.2 to be clear that the goal was not to scope in everything uploaded to social media into the ambit of the act but really to focus on commercial content defined in relation to these three criteria. That was in direct response to what the government heard and the concerns heard from social media creators, academics and other commentators about the effect of repealing section 4.1.
On those three factors, at the end of the day, the starting point is nothing on social media is scoped in until the CRTC goes through the regulatory process described in section 4.2 and crafts, in a specific and detailed way, what I have characterized as the corpus of content on social media services that would be scoped in. The government has been clear that the goal in doing that is to focus on commercial content and not to include the content of social media creators who are designing their content and uploading their content for distribution across social media platforms.
The Chair: Mr. Ripley, why, in your opinion, is the government so reticent in giving guidelines when it comes to content creators to the CRTC and taking the position that we’ll leave it to the CRTC to finish the public consultation? We’re not going to give them any policy directives, but believe us — the objective here is not to go after content creators.
Mr. Ripley: Thank you for the question, chair. If I were to characterize what the government is seeking to do at section 4.2, it is in a principled way to indicate the kind of content that it believes, when it’s distributed on social media platforms, could potentially be subject to the policy objectives of the act. Again, in shorthand, that’s commercial content.
But the government’s position is that, at the end of the day, the CRTC is the best entity to actually work through, in a practical and detailed way, what that looks like in practice. That will be through regulatory hearings with the industry, so an opportunity for social media platforms to come forward and say the best way to do this is “X.” It will be an opportunity for social media creators to come forward and be clear that such and such will ensure that our content is clearly scoped out. At the same time, it is an opportunity for folks like the commercial music industry to come forward and express their views on how commercial content on a service like YouTube should be treated.
The government has sought to put down the principles, recognizing that at the end of the day, the actual regulatory decisions and the implementation of that is best left up to the regulator.
The Chair: If I understand correctly from your answer, potentially user-generated content can possibly be regulated down the line by the CRTC.
Mr. Ripley: Thank you for the question, chair.
In terms of the principles that we see at section 4.2 — I think particularly when you look at subparagraph (b) — what the government has sought to express is that the content it believes could or should potentially be subject to helping achieve the policy objectives of the act is when that content is found on another broadcasting undertaking. The way I characterize that is when it is acting as a substitute.
As Senator Gold mentioned, are Canadians going to a social media service and using that social media service as a substitute for another service that would be subject to the act? If so, then it is a question of fairness. The government’s position is that it is asking a service like YouTube to contribute in the same way that it’s going to ask a service like Q Music or Spotify to contribute to the policy objectives of the act. However, the government recognizes that the model of that particular platform is different and that there is a significant part of it that is also a social media service. It is seeking to respect that ecosystem and make sure the two can continue to work together.
The Chair: Thank you, sir.
It is moved by the Honourable Senator Manning that Bill C-11 be amended in clause 4, on page 9, at line 30.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Nay.
Some Hon. Senators: Yea.
The Chair: I think the nays have it. We will have a recorded vote.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yea.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Nay.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: Nay.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: Nay.
Mr. Labrosse: The Honourable Senator Gold, P.C.?
Senator Gold: Nay.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: Nay.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: Yea.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Nay.
Mr. Labrosse: The Honourable Senator Omidvar?
Senator Omidvar: Nay.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yea.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: Nay.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Nay.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yea, in principle.
Mr. Labrosse: The Honourable Senator Woo?
Senator Woo: Nay.
Mr. Labrosse: Yeas: 4; nays: 10; abstentions: nil.
[English]
The Chair: Accordingly, the amendment is defeated.
Senator Miville-Dechêne: Mr. Chair, I have a question. Is it possible to distribute the amendments in advance?
The Chair: I have asked them to distribute them in as timely a fashion as possible, so if we can —
Senator Miville-Dechêne: Can we have a bundle or something of that nature?
The Chair: We can’t distribute them before they are moved. We will bundle and send them out before the next meeting. We just haven’t been able to do it this week.
Senator Miville-Dechêne: It helps because we may have double —
The Chair: As you know, we just started sending these to the clerk late last night.
Senator Miville-Dechêne: Yes. I just wanted to be sure that the request was on there.
The Chair: He’s on it.
The next is Senator Wallin’s amendment.
Senator Wallin: I’m going to withdraw this amendment.
The Chair: That solves that. That was very efficiently done.
We are moving to amendment DNP-C11-4-9-33, and they’re being distributed. That amendment is being moved by Senator Manning.
Senator Manning, you have the floor.
Senator Manning: I move:
That Bill C-11 be amended in clause 4,
(a) on page 9, by replacing lines 33 to 37 with the following:
“is uploaded to the social media service by the provider of the service or the provider’s affiliate, or by the agent or mandatary of either of them.”;
(b) on page 10, by deleting lines 9 to 32.
Colleagues, I would like to reiterate what Konrad von Finckenstein, former chair of the CRTC, told our committee. He said that the government declares that:
. . . there is no intention to cover user-generated content and thereby restrict the freedom of speech of Canadians. User-generated content, while it is generally exempted, can be made subject to the act by an exception to the exemption built into subclause 4.1(2) of the bill. Clearly, this subclause was meant to deal with hybrid streamers, such as YouTube, but there are great fears that it may affect other so-called “digital first” broadcasters who produce programs solely for the internet as well as ordinary Canadians uploading videos or music.
Morghan Fortier, Co-Owner and Chief Executive Officer of Skyship Entertainment, told the committee on September 28:
Senator Simons has correctly described section 4.2 as the problem child of this bill. . . . the CRTC has already given us their interpretation of the bill. They’ve said quite plainly that UGC is scoped in and that they would require platforms to artificially manipulate their algorithms, so we know how the government and the CRTC intends to use the bill. If they do that, other countries will follow suit, and this will be a huge economic blunder on the part of the government.
We have also heard from numerous individual creators on this issue. Therefore, I am proposing with this amendment that clause 4.2 be deleted from the bill. I suggest instead, in relation to clause 4.1(2), that we amend it in order to more clearly define “scope.” The act will not apply to user-generated content. It will retain the exception of a program uploaded to social media services if uploaded by “. . . the provider of the service or the provider’s affiliate, or by the agent or mandatary of either of them.”
I believe the amendment will provide the certainty that small online creators require and which we heard so much about during the testimonies of people who feel they are getting lost in the shuffle here. I believe the act as it is now limits the scope and continues to exclude user-generated content. This will cover that, so I look for your support.
Senator Simons: This is in large part precisely the same amendment we have just debated. Although I sympathize with its intent, I will oppose it for the same reason, and that is because we have a better one.
Senator Gold: Well, the government opposes this, and let me briefly explain why. Essentially, it deletes powers otherwise granted to the regulator with respect to content on social media that’s uploaded by unaffiliated users. We’re not talking here about individual content providers. We are talking about companies like Vevo or Universal Music Group, who are large companies and services through which music gets uploaded to YouTube.
The effect of this amendment would essentially insulate YouTube — no, that’s the wrong word — would allow YouTube and these companies to upload commercial content and avoid paying their fair share where they would otherwise have to.
Once again, as in the previous amendment, this really just goes against the basic objective of the act. This is not about user-generated content. It’s about unaffiliated users who commercially use, promote, upload or provide commercial content to services like YouTube.
We think that with social media services like YouTube, which is a popular means of broadcasting content, if you find the same album on YouTube or on Spotify, the obligations should be the same to both of those companies, so we oppose.
The Chair: Senator Gold, as you just said, if the intent of the bill is not to include user-generated content, why the hesitation in making it clear in the legislation?
Senator Gold: Respectfully, this was a much mooted discussion all the way through. I know that many around this table simply refuse to accept the government’s position, which I will now repeat: The government, having heard the interventions, has sought to strike a fair and reasonable balance to make it clear that user-generated content is not covered here and that it is only focused on, as Mr. Ripley said — to use the shorthand — commercial content. The bill strikes a fine balance. It respects the regulatory process within which all stakeholders can participate. It is a properly, fairly and responsibly crafted response to the changing media landscape within which we are navigating.
For that reason, the government believes that the balance it has struck is appropriate and that amendments of this kind would run counter to the fundamental objectives of the bill.
Senator Wallin: Just to be clear, I know, Senator Gold, that you say many around this table have refused to accept your assurances on user-generated content, but the chair of the CRTC and his legal officials sat at that very end of the table and said they do indeed have the power to capture user-generated content — they just promised they won’t.
That is why you keep seeing these kinds of amendments proposed, because we are all seeking clarification — something as clear, perhaps, as, “User-generated content will not be captured.”
Maybe if we saw that somewhere in the legislation, it would give many people comfort.
Thank you.
The Chair: Would you like to answer that, Senator Gold?
It is moved by the Honourable Senator Manning that Bill C-11 be amended on clause 4, page 9 — dispense?
Hon. Senators: Dispense.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Nay.
Some Hon. Senators: Yea.
The Chair: I think the nays have it. We will have a recorded vote.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yea.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Nay.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: Nay.
Mr. Labrosse: The Honourable Senator Dawson?
Senator Dawson: Nay.
Mr. Labrosse: The Honourable Senator Gold, P.C.?
Senator Gold: Nay.
Mr. Labrosse: The Honourable Senator Klyne?
Senator Klyne: Nay.
Mr. Labrosse: The Honourable Senator Manning?
Senator Manning: Yea.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Nay.
Mr. Labrosse: The Honourable Senator Omidvar?
Senator Omidvar: Nay.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yea.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: Nay.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Nay.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yea.
Mr. Labrosse: The Honourable Senator Woo?
Senator Woo: Nay.
Mr. Labrosse: Yeas: 4; nays: 10; abstentions: nil.
[English]
The Chair: Accordingly, the amendment is defeated, and we move on to another amendment from Senator Manning.
Senator Manning: I would like to inform the chair that, to move things along, I would like to withdraw my amendment in the spirit of cooperation.
The Chair: The amendment was withdrawn as quickly as it was distributed.
Now, we’re going to an amendment from Senator Quinn.
Senator Quinn: I move:
That Bill C-11 be amended in clause 4, on page 10, by replacing line 10 with the following:
“Commission may, subject to affirmative resolution of Parliament, make regulations prescribing programs”.
I want to start by saying that we have had numerous witnesses and numerous emails flooding our inboxes these past many months, and they have expressed concerns with respect to the powers invested in the CRTC. In fact, this morning we have had a number of discussions that have called into question what those powers may or may not be.
I believe these concerns need to be considered as we debate and amend Bill C-11 during this important clause-by-clause phase. This is particularly important as this bill attempts to absorb internet, social media and other online undertakings as broadcasting undertakings. In this context, there are newer considerations as opposed to traditional broadcasting undertakings that have been guided over the past 30 years by today’s Broadcasting Act and by the CRTC.
My amendment would require parliamentary approval for the following regulations: when the CRTC defines by regulation the exceptions to the general non-application of programs on social media; when cabinet issues any policy directives related to online undertakings; and when cabinet defines what is a Canadian program, Canadian content related to online streaming undertakings.
There is an additional consequential amendment to remove the duplicative tabling of a proposed policy directive under section 8, should my policy directive pass. That section reduces the requirement of an order being laid before Parliament for 40 sitting days in the current bill to 30 calendar days, which could conceivably remove Parliament involvement during long periods of recess, such as during a summer break.
It means that when a regulation, which includes an order, is made, it must be tabled before Parliament within 15 days, or, if Parliament is not sitting, within the first 15 days of when Parliament is sitting. Importantly, the regulation will not come into force until approved by both houses of Parliament, and it’s up to the Senate on how to proceed with an affirmative resolution of Parliament. The Senate could proceed to a vote and quickly approve the regulation, or if we as senators feel a regulation requires more study, have it quickly reviewed by the Senate Transport and Communications Committee and report to the chamber.
I acknowledge this may take slightly more time, but given the concerns raised by all our stakeholders and the discussions that have been occurring in this committee on whether these new rules for online undertakings will be on target or miss the mark, it is only appropriate for Parliament to have a final say on whether they will become law.
I believe the CRTC and cabinet will strive to find the right balance. However, as someone who has previously worked in the Privy Council Office, I can also appreciate that sometimes the regulatory consultation process via the Canada Gazette process may not find that balance, given that the regulation of online undertakings under Bill C-11 is new.
Although we have a Joint Committee for the Scrutiny of Regulations, which one of our witnesses talked about as the place for regulations to be reviewed, the Scrutiny of Regulations Committee only has the power to disallow regulations if both the Senate and the House of Commons agree. This means that a regulation would be in force already and then disallowed by Parliament. This type of approach is not ideal for the concerns raised by Bill C-11, and it has been rarely used.
By ensuring greater transparency and oversight due to parliamentary approval, this should help mitigate the concerns expressed today and that Canadians have shared with us with respect to these new powers to regulate online undertakings.
Basically, I’ve outlined a rationale that I think addresses a lot of the discussion here today and from Canadians who have taken the time to submit their input. I would say, contrary to what is being proposed in the bill, to move to 30 calendar days from the previous 40 sitting days to bring in a balance where the CRTC, as it does regulatory work with respect to the online streaming aspects of its work — and it’s a new activity — this should come to the two houses of Parliament for a short period of review, and if it’s fine, it goes through, and if not, it is referred to committee so they can quickly look at it. That’s basically what this does.
The Chair: Senator Quinn, if my understanding is correct, you’re proposing to have an oversight role after the consultative process that the CRTC conducts. Am I hearing you right?
Senator Quinn: The gazette process wouldn’t change. What it would do is bring it before Parliament, and I would expect that it would be reviewed and, quite likely, passed very quickly. But for a lot of things, for example, such as some things talked about this morning about the latitude the CRTC may or may not take, I think there is a responsibility on Parliament to look at those and to say, “Yes, it’s within the scope of what we understood in the discussion here,” and what could become the act has resulted in or not.
Senator Gold: Thank you. The government cannot support this amendment, Senator Quinn.
It is standard, well-established practice in our system of government that there is a legislative process and a regulatory process. The regulatory process, which has been well described in the course of this hearing and is well known to all senators, provides appropriate input for all stakeholders. Regulations are designed to be a complement to the legislative process that we as senators and our counterparts in the other place are responsible for. It’s precisely so that there can be both flexibility and a certain degree of efficiency when the details of policy have to be articulated.
Your amendment, however well intentioned, would just create an overly burdensome level of process on what is a well-established part of our Westminster system. It’s not necessary. The regulatory process is well described by Mr. Ripley and others and is well understood. It can and will do the job to make sure stakeholders are heard and the appropriate balance is struck.
For those reasons, we cannot support it.
Senator Quinn: I would like to point out that I understand exactly what Senator Gold has said. I pointed out that the Canada Gazette process is a passive process; it doesn’t require action by the government after the input has come in. This is not something that’s new that I’m making up. It exists in the Employment Insurance Act with respect to regulations to include persons in business, and it says:
The Commission may, with the approval of the Governor in Council and subject to affirmative resolution of Parliament, make regulations for including in insurable employment the business activities of a person who is engaged in a business, as defined in subsection 248(1) of the Income Tax Act.
It does exist in government. It’s a check and balance in an area that requires a check and balance, and given the newness of this for the CRTC and the discussion we have had here, I think there needs to be that type of more active rather than passive check and balance.
The Chair: It is moved by the Honourable Senator Quinn that Bill C-11 be amended in clause 4, on page 10, at line — shall I dispense?
Hon. Senators: Dispense.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Nay.
Some Hon. Senators: Yea.
The Chair: It seems the nays have it; on division, if you would like, Senator Quinn? Accordingly, the amendment is defeated, on division.
Next is an item from Senator Manning.
Senator Manning: In the Christmas spirit, I would like to withdraw that.
The Chair: It is so withdrawn by Senator Manning, so we will move on to the next item.
Senator Manning: In the Christmas spirit, I would also like to withdraw that one.
The Chair: Senator Manning is being very benevolent this morning, to the pleasure of Senator Gold.
The next item belongs to Senator Wallin.
Senator Wallin: This one is pretty straightforward. The goal is to remove the word “indirectly” from the revenue generation criteria being set. We had this discussion about who would be captured by indirectly generating revenues and, of course — oh, is that the wrong one?
The Chair: No.
Senator Wallin: This is the wrong one — “directly, indirectly.” Sorry, it’s similar wording. I’m withdrawing this one because I have another one that is more specific. My apologies for that.
The Chair: There is a minute left, senator. We can distribute the next amendment, colleagues. I see some amendments excite certain senators more than others. That’s fine.
Senator Miville-Dechêne: It would be a good idea to leave it with you because we are probably going to finish that tonight.
The Chair: It would be good, colleagues, to keep that amendment that’s being distributed close to you, and that way we will pick up where we left off.
Senator Miville-Dechêne: Senator Simons gave you an overview of that process. I will explain briefly where it comes from. We all know that a lot of fear was expressed by content creators about the scope of section 4.2.2. I will go back to French. This is a little bit technical. Should I read it? Or maybe not?
The Chair: All colleagues have the amendment, and we will pick up with Senator Miville-Dechêne’s amendment —
Senator Miville-Dechêne: I will explain it intelligently tonight. I’m sorry.
The Chair: You will explain it in detail and we will debate it, I am sure, thoroughly. Colleagues, we will see everyone later this evening.
(The committee adjourned.)