The Broadcasting Act Blunder, Day 12: The “Regulate Everything” Approach – The CRTC Conditions | Unpublished
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Ottawa, Ontario
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Dr. Michael Geist is a law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law. He has obtained a Bachelor of Laws (LL.B.) degree from Osgoode Hall Law School in Toronto, Master of Laws (LL.M.) degrees from Cambridge University in the UK and Columbia Law School in New York, and a Doctorate in Law (J.S.D.) from Columbia Law School.  Dr. Geist is a syndicated columnist on technology law issues with his regular column appearing in the Toronto Star, the Hill Times, and the Tyee.  Dr. Geist is the editor of several copyright books including The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (2013, University of Ottawa Press), From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda (2010, Irwin Law) and In the Public Interest:  The Future of Canadian Copyright Law (2005, Irwin Law), the editor of several monthly technology law publications, and the author of a popular blog on Internet and intellectual property law issues.

Dr. Geist serves on many boards, including the CANARIE Board of Directors, the Canadian Legal Information Institute Board of Directors, the Canadian Internet Registration Authority, and the Electronic Frontier Foundation Advisory Board. He has received numerous awards for his work including the Kroeger Award for Policy Leadership and the Public Knowledge IP3 Award in 2010, the Les Fowlie Award for Intellectual Freedom from the Ontario Library Association in 2009, the Electronic Frontier Foundation’s Pioneer Award in 2008, Canarie’s IWAY Public Leadership Award for his contribution to the development of the Internet in Canada and he was named one of Canada’s Top 40 Under 40 in 2003.  In 2010, Managing Intellectual Property named him on the 50 most influential people on intellectual property in the world and Canadian Lawyer named him one of the 25 most influential lawyers in Canada in 2011, 2012 and 2013.

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The Broadcasting Act Blunder, Day 12: The “Regulate Everything” Approach – The CRTC Conditions

December 8, 2020

The Broadcasting Act blunder series with a continued examination of the “regulate everything ” approach in Bill C-10. A previous post focused on the regulation and registration requirements which make a mockery of the government’s claim that there are no licensing requirements for Internet services since the requirements are little different than what is often found in a licence. Indeed, Section 10(1)(i) gives the CRTC the power to establish regulations that could require all broadcasting undertakings – including online undertakings – to register with the Commission, pay registration fees, and face regulations on Canadian programming, advertising rules, and audit rules.  Failure to comply with these regulations carries the possibility of stiff penalties.

But Bill C-10 goes beyond those regulatory requirements. Section 9.1 (1) features numerous conditions that can be imposed on any broadcast undertaking – including online undertakings. In addition the unnecessary discoverability conditions discussed in this previous post, the CRTC can impose conditions related to:

  • the proportion of programs to be broadcast that are Canadian
  • access by persons with disabilities to programming, including the identification, prevention and removal of barriers to such access
  • the carriage of emergency messages
  • providing the CRTC with information on ownership, governance and control of the services as well as any affiliates
  • providing the CRTC with any other information it requires, including financial or commercial information, programming information, expenditure information, and any information related to the provision of broadcasting services

While these provisions may fit within a licensed, Canadian-only environment, the conditions can be applied to the CRTC to foreign online services with no presence in Canada. In fact, without any economic thresholds in the bill, the starting point is that all services around the world are potentially covered by these conditions so long as they have some Canadian subscribers. The CRTC may ultimately limit the reach of the rules following extensive hearings, but for services thinking about the Canadian market, the regulatory environment may well be reason to block Canadian subscribers. Canadian Heritage Minister Steven Guilbeault claims that Bill C-10 will not result in less consumer choice, yet the more likely outcome is a Canadian regulatory firewall that has new entrant streaming services thinking twice before entering the market.