In this essay, I will explain what the Online Streaming Act does, and why rather than being a merely slippery slope for future problems, this statute’s censorship uniquely infringes charter rights while its predecessor Broadcasting Act does not. Additionally, I will expound why one might care — this censorship is beyond mere regulation of recommendation algorithms, but is the government’s attempt to punish the public for not sharing its purported narrative of Canada.

At this point, one might ask, what is content is considered Canadian? And who gets to decide what is Canadian enough? Well, herein lies the problem. The Online Streaming Act gives the CRTC the power to define what content is considered Canadian, as well as the power to impose penalties on streaming platforms that do not meet this quota. Before we unpack why this is problematic, let’s understand what Proponents of the bill will argue.

The claim of the essay is that "censorship" violating charter rights is the result of the statute. If so, the Broadcast Act also infringes charter rights, does it not? If not, the essay needed to show why. But you have abandoned the claim, in fact, in favor of a "slippery slope to maybe creating a problem under some circumstances" position. This form of argument is generally disfavored, for evident reasons. But in US First Amendment jurisprudence, standing to challenge the constitutional validity of a regulation that might constitutionally be applied to the plaintiff's speech because it is capable of unconstitutional application is permitted, in order to avoid the "chilling effect" on other potential speakers. If you were offering an overbreadth analysis of the Streaming Act, you needed to show that there is such an expansive jurisdictional grant in place.

Who cares? The "censorship" does not actually result in any Canadian's being unable to access any work of culture or information. The actual effect is regulation of recommendation algorithms, which is not self-evidently a constitutional claim except on behalf of the platform, whose right to run whatever computer programs they want is doubtless subject to regulatory intervention.

-- By TonyWang - 15 Apr 2024

Section 2(b) of the Canadian Charter of Rights and Freedoms gives Canadians a constitutionally protected right to Freedom of Expression, which the Online Streaming Act will inevitably violate because it promotes Canadian Content through Censorship.

Something feels off right? Well, before we unpack what this will mean, let’s understand what Proponents of the bill will argue.

Subsection B

Unpacking this Trojan Horse

The CRTC is given the power to define what content is Canadian enough. How could a commission‘s definition of what constitutes Canadian possibly become problematic? Here’s an example. A TV adaptation of Margaret Atwood’s novel The Handmaid’s Tale, did not qualify as CanCon? under the CRTC, never mind that the novel was written by a famous Canadian author and the TV adaptation was filmed in Canada. Whatever reason the CRTC had to not deem this Canadian enough, it is clear that definitions around what is Canadian necessarily includes biases about what one believes Canadian aspects are important. But to define what is Canadian will necessarily reject other interpretations of the Canadian identity. For example, one policy goal of the Act is to promote English-French bilingualism to protect equality of the Quebecois, but doing so will reject a notion of Canada where a majority of French-speaking population is limited to Quebec, with the rest of Canada not proficient in French. The CRTC operates at arms-length from the federal government, with the power to promote through licensing and regulation content they deem Canadian on streaming platforms. In prioritizing their version of Canadian culture, they paint a version of reality they want to emphasize, but must inevitably de-prioritize “non-Canadian” content.

Although this Bill does not directly regulate content creators on social media, it nevertheless influences the content they make by incentivizing the streaming platforms content creators use to draw attention towards CanCon? and away from everyone else. To illustrate by example: if tomorrow the CRTC decides that 30% of videos on YouTube? shown to Canadians on their ‘for you’ page must be “Canadian Content”, and failure to meet this requirement will result in penalties for Youtube, then what might happen? Clearly, YouTube? will promote and prioritize videos the CRTC deems is Canadian enough by bumping these videos to the top of video search results and pushing this content onto Canadian users. This comes at the cost of content creators whose videos don’t fit into the CRTC’s CanCon? definition, resulting in their loss of viewership and revenue. Over time, content creators will adapt by changing their content to fit within the CRTC’s CanCon? framework, and the CRTC can indirectly suppress and censor content they consider non-Canadian through promoting CanCon? .

While this newly passed Act has yet to operationalize itself on a large scale, one can see how a slippery slope can form, resulting in an Orwellian shadow over content creators and the version of Canadian culture Canadians will be exposed to.