On June 8, 2023, the Government of Canada published in the Gazette the proposed Order for the implementation of the Online Streaming Act, following the adoption of the Online Streaming Act on April 27th of this year. Once adopted, this order will provide “binding and high-level instructions to the CRTC in the implementation of the Online Streaming Act” (emphasis added). It is worth noting that its publication follows certain key consultations initiated by the CRTC to begin the development of a modernized regulatory framework that will now apply to both Canadian and non-Canadian online businesses. The swift launch of these consultations already allows us to acknowledge certain approaches of the CRTC and highlights the importance of the order of instructions.
The Broadcasting Act is a cultural-oriented law, whose main objective is to protect Canadian cultural sovereignty. The modernization of the Act was necessary to restore balance in an ecosystem that had become severely unequal over the past two decades. However, as the Coalition has repeatedly pointed out during the legislative process, a provision at the core of the Canadian Broadcasting Policy maintains a double standard between traditional Canadian companies and foreign online companies. For the CDCE, one of the key objectives of the order of instructions should be to ensure maximum support for high-quality Canadian programming, created and produced using a maximum of Canadian creative resources.
In its public communications, the government indicates the publication of an order “to set the stage for equitable, flexible and adaptable regulation” The CDCE welcomes certain elements that effectively clarify the government’s intentions regarding fairness, such as Articles 4 and 9 (which nevertheless require some clarifications). However, other sections, particularly those dealing with aspects related to the flexibility and adaptability of the framework, raise concerns. Consequently, we provide comments related to Articles 6, 8, 10, 11, 12, and 13.
In 2021, the Coalition submitted comments in response to an initial draft of the order. This draft was received by coalition members as a literal call to deregulate the Canadian broadcasting system. While several improvements have been made in this new version, it remains essential for us to reiterate that the order of instructions must not in any way weaken the objectives stated in the Canadian Broadcasting Policy. It should also avoid limiting the scope of action of the CRTC by overly prescribing its regulatory actions.
The CDCE has a mission to promote the 2005 Convention on Diversity of Cultural Expressions. This intervention is fully in line with this mission. It is worth noting that Canada was the first country to ratify this Convention, and subsequently, the Operational Guidelines on the Implementation of the Convention in the Digital Environment were added, unequivocally affirming the need to protect cultural expressions online. These guidelines explicitly state that “the specific nature of cultural activities, goods, and services as carriers of identity, values, and meaning remains the same in the digital environment. Therefore, the recognition of the dual (cultural and economic) nature of cultural goods and services also applies to cultural expressions in the digital environment or those produced using digital tools.”
The modernized Broadcasting Act falls within this framework of action, and the CDCE applauds this major legislative step. However, the comments we express here aim to enhance or correct certain elements stated in this proposed order to prevent any weakening of the scope of objectives outlined in the Canadian Broadcasting Policy or support a form of deregulation within the system.