Law in Contemporary Society
Canada’s Online Streaming Act: Promoting Canada Through Censorship

-- 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 through Censorship.

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.

What is the Online Streaming Act?

The Online Streaming Act, known as Bill C-11, makes changes to Canada’s Broadcasting Act last updated in 1991. The Broadcasting Act gave the CRTA (Canadian Radio-Television and Telecommunications Commission the power to regulate broadcasting, with the purpose of making Canadian Content, or CanCon, accessible and available in Canada. Before the Online Streaming Act was passed in 2023, the Broadcasting Act did not include online media that delivers audio-visual content under its licensing and regulatory supervision. Today, the new Online Streaming Act will expand the CRTC’s regulatory powers beyond the radio to include the internet — online streaming platforms such as YouTube? , Netflix, Spotify, and etc. Clause 2 of the Act classifies audio-visual content on these streaming platforms as “Online Undertakings”, a class of broadcasting service subject to the licensing and regulation of the CRTC. Clause 10 of the Act gives the CRTC the power to mandate what proportion of programs on these streaming platforms must be Canadian Content or “!CanCon”.

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.

Why proponents say we need this Act.

Subsection B

Proponents make several assertions. Firstly, the Online Streaming Act merely updates the outdated Broadcasting Act to include new forms of broadcasting on the internet, which is a natural adaptation of the Broadcasting Act’s powers to the modern age. Secondly, such government paternalism and cultural protectionism is necessary for purposes of equality, because promoting Canadian content that reflects Canada’s diverse cultural identity and bilingualism will ensure Canada’s equality.

Why the Online Streaming Act infringes Charter Rights while the Broadcasting Act does not.

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 the Broadcasting Act also gave the CRTC these powers, so what makes this new statute unconstitutional?

The Broadcasting Act applied to Federal Crown Corporations like the Canadian Broadcasting Corporation, which operated at arms-length from the government and received federal funding. Because these corporations received government funding, the public knows that the narrative of Canada they purport is one that is approved by the Federal Government. It becomes a different story when the government controls the narrative of Canada shared by everyday people, and that is precisely what makes the Online Streaming Act unconstitutional while the Broadcasting Act isn’t. This new Act applies to the public rather than corporations at arms-length from the government — everyday people who post content on YouTube? and whose livelihoods depend on the viewership of their videos. Whereas before this statute was passed these people could post content that purported their narrative of Canada and not be punished if their narrative is not approved by the government, that no longer is the case. Their viewership is no longer a function of demand by the audience, but determined largely by the CRTC, even though they receive no federal funding. The CRTC now have the power to punish everyday people if their narrative is not one shared by the CRTC. The mechanism of quotas that platforms like YouTube? needs to fulfill lest they be fined is effectively a form of censorship that punishes members of the public for not sharing the version of Canada purported by the CRTC. Through setting quotas for platforms like YouTube? to promote a certain amount of CanCon? , this will inevitably demote the content of people who narrative of Canada is not shared by the CRTC, costing them viewership and their livelihoods. Over time, this negative incentive will shift the public consciousness in the direction of the government, creating an Orwellian shadow. This punishment of the public for not sharing “Canadian Content” is inevitably a violation of the Freedom of Expression set forth in the Charter of Rights and Freedoms.


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r3 - 01 Jun 2024 - 01:51:10 - TonyWang
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