Bill C-10, An
Act to amend the Broadcasting Act and to make related and consequential
amendments to other Acts, is currently under review by the
Canadian Heritage Committee of the House of Commons. It was unanimously
adopted in the House at second reading on February 16.
The
entire matter is presented in a very reasonable way, as a matter of
making sure Canada keeps abreast with technological advances and that
digital media giants such as Netflix, Amazon, Apple, Disney and others
adhere to Canadian content rules and other cultural support
requirements demanded of traditional broadcasters.
"Canadians
increasingly access their music, television shows and
films through online broadcasting services. However, unlike traditional
broadcasters, these online services have not been
required to contribute to the creation, production, and distribution of
Canadian music and stories. Canada's legislation must keep pace with
technological change, to ensure that Canadian
content producers and creators are well supported. Online broadcasters
must contribute their fair share, [...]," a government backgrounder on
the bill reads. The backgrounder continues:
"[Bill
C-10] will require online broadcasters to contribute to the
Canadian broadcasting system and will provide the Canadian
Radio-television and Telecommunications Commission
(CRTC) with the modern tools it needs to keep up with technological
changes."
So what is this all about? What is really
going on?
The Broadcasting Act
was first enacted in 1936 and last
amended in 1991. It sets out the country's broadcasting policy, the
role and powers of its regulatory agency, the CRTC,
and the mandate of CBC/Radio-Canada as the public broadcaster. The
purpose of the current amendments, according to the government, is to
address technological developments in
broadcasting.
With Bill C-10, companies such as
Amazon, Apple, Disney and Netflix
will be subject to regulations. Unlike traditional broadcasters they
will not be subject to statutory licensing
requirements. Yet to be revealed obligations will be imposed on them
through CRTC regulatory power.
According to another
government backgrounder on Bill C-10, "If the
Bill is adopted, the Minister of Canadian Heritage intends to ask the
Governor-in-Council to issue a policy direction to the CRTC on how it
should use the new regulatory tools provided by the Bill."
Another
backgrounder goes on to say, "In consultation with
stakeholders, the CRTC will develop and implement new regulations to
ensure that both traditional and online broadcasting services,
including internet giants, offer meaningful levels of Canadian content
and contribute to the creation of Canadian content in both Official
Languages."
An
inquiry into the matter gave rise to an awareness that Bill C-10 will
change who owns and controls the broadcasting system. This seems to be
the most significant change in Bill
C-10, one that is not even mentioned in government backgrounders. It
eliminates the long-standing, first principle of Canada's broadcasting
policy: Canadian ownership and control of the
broadcasting system.
This principle was first
formulated in the late 1920s and early
1930s in the period when U.S. broadcasting into Canada was viewed as a
threat to national culture by the ruling elites of
the day. The principle was enshrined in law with the 1932 Canadian
Radio Broadcasting Act, which created CBC as a public
broadcaster, also empowered at the time to regulate and
license broadcasting.
The 1932 Act prohibited
foreign ownership and recognized the
airwaves as a public asset and the need for the airwaves to be
nationally owned and controlled. Speaking in the House of
Commons on May 18, 1932, Prime Minister R.B. Bennett, leader of the
Conservative Party, outlined the Act's underlying principles and
rationale. "First of all," he said, "this country must
be assured of complete Canadian control of broadcasting from Canadian
sources, free from foreign interference or influence. Without such
control radio broadcasting can never become a
great agency for the communications of matters of national concern and
for the diffusion of national thought and ideals, and without such
control it can never be the agency by which
national consciousness may be fostered and sustained and national unity
still further strengthened."
He went on to contrast
the public versus private ownership of
broadcasting. "Second, no other scheme than that of public ownership
can ensure to the people of this country, without
regard to class or place, equal enjoyment of the benefits and pleasures
of radio broadcasting. Private ownership must necessarily discriminate
between densely and sparcely populated areas.
This is not a correctable fault in private ownership; it is an
inescapable and inherent demerit of that system."
Finally,
Bennett outlined the third consideration. "The use of the
air, or the air itself, whatever you may please to call it, that lies
over the soil or land of Canada is a natural resource
over which we have complete jurisdiction. [...] I cannot think that any
government would be warranted in leaving the air to private
exploitation and not reserving it for development for the
use of the people."
Presciently, Bennett added: "It
may well be that at some future time,
when science has made greater achievements ... it may be desirable to
make other or different arrangements in
whole or in part, but no one at this moment in the infancy of this
great science would, I think, be warranted in suggesting that we should
part with the control of this natural resource."
The
principle of public ownership and control was reiterated in the 1967 Broadcasting
Act
adopted by the Pearson Liberals, with much fanfare on the occasion of
the centenary
of Confederation. The law was amended to suit technological
developments and set out the statutory requirement that all Canadian
broadcasters -- radio, TV and cable -- be owned and
controlled by Canadians. It is this provision that is being eliminated
by the Trudeau Liberals today.
Since then, the
Broadcasting Act's broadcasting policy
has stated as its first principle: "It is hereby declared ... (a) the
Canadian broadcasting system shall be effectively
owned and controlled by Canadians."
Bill C-10
replaces this clause with a declaration more likely to
obfuscate than to enlighten and designed to ensure full discretionary
powers are enabled: "(a) each broadcasting
undertaking shall contribute to the implementation of the objectives of
the broadcasting policy set out in this subsection in a manner that is
appropriate in consideration of the nature of the
services provided by the undertaking."
There are
twenty other such "guiding principles" most of which
remain intact from the current Act, such as the "system should serve to
safeguard, enrich and strengthen the cultural,
political, social and economic fabric of Canada."
The
elimination of the Canadian ownership clause has been the subject of a
lot of questioning and criticism. Responding to questions at second
reading, Heritage Minister Steven Guilbeault used typical Liberal
doublespeak to beat about the bush. He told the House of
Commons, "We are not changing anything with respect to ownership of
Canadian companies." He said the eliminated clause "is not what ensures
that Canadian companies have to be owned
by Canadians." Really! He said that the CRTC, as the body that licenses
broadcasters, controls ownership. He argued that the clause needed to
be amended "to ensure that Canadian laws
and Canadian regulations apply to web giants."
This
of course begs the question: what laws, what regulations, and
who will decide how they apply to "web giants" who have operated thus
far without any regulation. Moreoever, what
happens if it is the "web giants" who are compelling which decisions
are taken, in which case the question returns to who owns and controls
the "web giants"?
Faced with further questioning in
Committee, Guilbeault insisted:
"[W]e're not sacrificing the ownership of Canadian broadcasters. We're
not. That's simply not the case. What we're
doing ... is ensuring that Canadian laws and regulations can apply to
online platforms, which they can't right now. If we don't create a
space in the bill to do that, how can we apply our
laws and regulations to them?"
Experts in the
field, as well as MPs, are not accepting Guilbeault's
dismissal of the ownership issue as a moot point. Many are pointing out
that the Canadian ownership principle could
have been left intact and specific clauses to deal with taxation and
contributions to Canadian cultural endeavours by foreign-owned digital
media could have been added.
In Committee, NDP MP
Heather McPherson asked Guilbeault and his
staff for further clarification. "I want to understand the motivation
for this proposed change," she said, "and
whether it could facilitate the acquisition of our broadcasters by
American companies, for example." Thomas Owen Ripley, a senior staff
member in the Canadian Heritage Ministry said, "The answer is no." He
explained, "Right now, there is a directive to the CRTC that provides
restrictions on foreign ownership with respect to licensed entities.
The reality is that our over-the-air broadcasters and our cable and
satellite companies cannot be put under foreign ownership and control
as long as that directive remains in place."
For
further certainty, McPherson asked: "Just to clarify, Mr.
Ripley, that directive is binding? It is not something that can be
changed by the CRTC?" Ripley affirmed: "It cannot be
changed by the CRTC."
When pressed further on this
issue by Bloc Québécois
MP Martin Champoux, Guilbeault stated: "The CRTC has no authority over
this issue. It's a government decision. Could another
government decide to change things? A government is always sovereign
and free to make its own decisions. In any event, the CRTC cannot do
that, and [Bill C-10] does not change that.
The directive that is in place stays in place."
Besides
assuring us that "a government is always sovereign and free
to make its own decisions" (i.e. has prerogative powers above the
legislative powers of the Legislature to do
whatever it pleases and that sovereignty lies in these police powers)
it still does not answer the question of why the clause as it stands is
being eliminated.
Creating a Less and Less
Equitable Broadcasting System
Between Canadian and
International Operators
The Independent Broadcasters Group[1]
also appeared before the Canadian Heritage Committee. It objected to
the removal of the Canadian
ownership and control provisions and explained the implications. Joel
Fortune, the Group's legal counsel stated: "The way the law works,
generally, is that it has two major parts. There are
the [broadcasting] policy objectives set out in Section 3, and then
there are the powers. You have to have both elements. You have to have
policy objectives, and you have to have the
power. You can have all the noble policy objectives in the world, but
if there's no power to back them up, they don't help. Similarly, you
can have all the powers in the world, but if
there's no object in the act, it can easily be challenged.
"In
the case of ownership, first on the policy level, it would be
incredible to me if we didn't have the support of Canadian ownership in
our system as an objective. This is not to say
that the ownership language shouldn't be amended; perhaps it should be.
However, we've proposed an amendment that I think takes into account
global platforms while also preserving the
space for Canadian broadcasters.
"Why do we want
that? We don't want Canadian broadcasters just to be
branch plants of foreign platforms. [...] Legally, the direction exists
under the existing act, which includes a
requirement that the broadcasting system be effectively owned and
controlled by Canadians. That policy direction speaks directly to that
object. If you have no object about Canadian
ownership, what's the authority for making that direction? It's
certainly open for the direction to be challenged at law that it's no
longer valid, given the change in the policy and the act.
That's the concern there. [...] If the government were taken to court
on the vires of its ownership direction and it were
struck down, then there would be no ownership restrictions
within Canadian broadcasting."
As unnecessary as
one might think them to be, the challenges to the
Liberal claim that removing the Canadian ownership clause is immaterial
reveal that it is very material and will
impact how decisions are made and what informs them. It is clear that
the policies guiding the CRTC's rulings and regulations are 1)
controlled by the government of the day; 2) guided by
the legislation it enacts; and 3) subject to the prerogative powers of
the Cabinet, all of which amount to the same thing and poses the
question -- what narrow private interests are pulling its
strings?
The eliminated clause on ownership
reflects the politicization of
private interests in conditions of a highly monopolized broadcasting
industry. Richard Stursberg, co-author of The
Tangled Garden: A Canadian Cultural Manifesto for the Digital Age
and former executive director of Telefilm Canada, appeared before the
Committee and addressed the Canadian
ownership issue.
"First, under the present act,
broadcasting companies operating in
Canada must be owned and controlled by Canadians. There has been much
talk about whether Bill C-10 eliminates this
requirement," he said. "The legal issue is largely academic, since the
requirement was ceded a decade ago. Over the last 10 years, foreign
broadcasters like Netflix and Amazon have been
offering TV programs to Canadians without any need to be
Canadian-owned. There is no chance in the future that they will be
forced to become Canadian-owned."
Having
acknowledged this, Stursberg, as well as several other
witnesses who appeared in Committee argued that in the name of equality
of opportunity it may be time to eliminate
foreign ownership regulations in the industry completely. Stursberg
said: "In the interest of equity, you may want to consider putting
Canadian and foreign broadcasting on the same footing
by amending Bill C-10 to make sure the Canadian ownership requirements
are gone. Not to do so would be to disadvantage Canadian broadcasters
in their own market."
Indeed! But how about the
issue of whose interests broadcasting serves and who speaks in the name
of Canadians?
Troy Reeb, Executive Vice-President
of Broadcast Networks, Corus
Entertainment, echoed Stursberg and said it was important "for Canadian
companies not only to be able to make the
investments we want, but to be able to attract investments as well."
"One of the things the bill gets right is to treat foreign
Internet
broadcasters the same as Canadian broadcasters. In doing so, it removes
some limits on foreign ownership. We're not
necessarily advocating for foreign ownership, but we do need to have
the ability to attract foreign investment, if necessary, to compete
against these trillion-dollar giants from Silicon Valley
and Hollywood. This is where the question of flexibility comes in. We
want to create Canadian programming, but if our primary competitors are
creating Canadian programming with
billions of dollars coming from international markets, we need the
capability to be able to do the same."
Canadian
Association of Broadcasters[2]
President Kevin Desjardins, also called for equalizing the playing
field. Referring to the digital giants,
he said, "They have the scale and the ability to be able to take
advertising and distribute it. They're certainly much larger, and
they're able to undercut the prices of, for example, a Canadian
company trying to get into this area. They would be able to undercut
that company by virtue of the fact they are globally capitalized. This
goes to the previous question [of] Canadian
ownership. I think that one of the things we keep talking about in this
discussion is creating a less and less equitable broadcasting system
between Canadian operators and international
operators. International operators have vast access to capital markets
around the world, and if we want to say that, well, they can do that,
and Canadian operators can only bring in --
"[...]
The
Broadcasting Act is fundamentally the law by which
broadcasters
operate, and there are lots of people who have an interest, but we're
committed to this, so the last thing that I
would plead, to both this committee and the government, is to keep
broadcasters and their future ability to compete at the centre of the
considerations going forward."
It is thus clear
that far from modernizing the Broadcasting Act,
as the Liberals claim, Bill C-10 marks the official death of
nation-building in broadcasting which was rooted in
opposing the U.S. cultural domination of Canada. In its place, the
private interests that own the "digital giants" which operate in Canada
will now have uncontested free rein. Is this a matter
of making Canada more competitive in the global market in tune with the
times, as various people are saying, or less competitive as some are
arguing with reason? Are the promised
regulations, which will require Facebook, Google, et al to
pay
taxes and contributions that amount to minuscule figures in relation to
their mega profits simply aimed at making them
pay a fair share, which many argue will not be fair at all. Or, when
taken in combination with the government's plans to further regulate
on-line content, is all of this being done to further
integrate Canada into U.S. "homeland security" and harmonize the two
governing regimes? There is compelling evidence to show that at the end
of the day, the narrow private interests
taking the decisions and setting regulations in both countries are the
forces within the U.S. defence industry which seek to impose U.S.
imperialist control over all contending interests.
While they intervene as cartels and coalitions which give themselves
free rein in Canada, other private interests are blocked in the name of
being enemy agents, interfering with Canada's
liberal democratic institutions and promoting "un-Canadian" -- read
"un-American" -- values.[3]
Officially incorporating the neo-liberal agenda into the Broadcast
Act de facto abandons any consideration of the economic,
social, political and cultural life needed by Canada
and Canadians and what that might be. It totally nullifies every other
clause of the Act whose very raison d'être is
said to be to make sure the Canadian broadcasting system
encourages "the development of Canadian expression by providing a wide
range of programming that reflects Canadian attitudes, opinions, ideas,
values and artistic creativity, by displaying
Canadian talent in entertainment programming and by offering
information and analysis concerning Canada and other countries from a
Canadian point of view."
Completely off the agenda
in this exercise of subordinating the
broadcasting policy to the narrow private interests that own and
control the "digital giants" under the sway of U.S.
imperialism are important matters such as the decades-long destruction
of the CBC as a national public broadcaster and, indeed, its conversion
into a mouthpiece for policies of subsequent
governments over which the people exercise no control. There are not a
few instances of the CBC being threatened with cuts and even closure
because it was suspected of not toeing the
line of the federal policies of the day. Prime Minister Jean
Chrétien,
for instance, called Radio-Canada a boîte
à séparatistes
(nest of separatists) during the 1995 Quebec
Referendum, complaining that it ignored or downplayed his speeches, and
Prime Minister Pierre Elliot Trudeau believed the same, threatening to
shut the network down during his
reign.[4]
Massive cuts from the late eighties on have never been
reversed, so
that today the CBC stands 17th out of 20 countries monitored by the
Organization of Economic Cooperation and
Development in terms of per capita funding. The CBC receives $34
per capita compared to an average of $100, with $180 per capita in
Norway and $97 in the UK. While funding
has been increased, the levels have never been restored to what they
were before the launch of the anti-social offensive, let alone
increased to an amount that would allow it to fullfil its
purported role.
The legislation also leaves the
appointment of CBC directors in the
hands of the ruling party which, combined with the ever-present threat
of funding cuts and the absence of a
statutory guaranteed funding provision serves to make it prey to the
cartel party system, its values and agenda and the pressures of
neo-liberalism. This not only views any form of
subsidization for a public purpose anathema to its aim, it pushes
anti-nation warmongering values and aims that are anathema to what
Canadians stand for.
Furthermore, policy objectives
in the Broadcasting Act, which
remain unchanged and were not even put on the agenda for consideration,
persist as the foundation for the
anti-democratic standards upheld by the CRTC. A case in point is its
evaluation of election coverage of the country's political parties on
the basis of the concept of "equity" rather than
"equality." Whenever complaints are filed about biased election
reporting, they are more often than not dismissed on this basis. A
derisive sentence about the existence of "fringe-parties"
fielding candidates in an election is deemed to meet the requirements
of "equity."
On
a day-to-day basis, the CRTC policies endorse a broadcasting system
that prohibits the airing of all political trends, views and
persuasions. Most egregious of all is the absence in
news coverage of reporting on the struggles, demands and concerns of
the working people along with those of Indigenous peoples and all those
fighting in defence of rights and for peace,
justice and democracy.
Canadians need a national
broadcasting system which serves their
interests. It must professionally give expression to what the people of
this country, from all walks of life and all
beliefs and persuasions, have to say, as well as sing about, dance
about, write about, make music and films about, as well as argue about
and discuss.
Today, regulations are being passed by
government prerogative, based
on criteria citing national security and interests which permit
"intelligence agencies" to censor speech on social
media. Why is this not being discussed? Another self-serving claim is
that if the "digital giants" censor access to their social networks it
is a private matter between private interests --
oneself and the tech giant -- over which governments exercise no
control. They claim it is not in the public domain!
All
of this shows that the matter of Canada's Broadcasting Act is
a matter of serious concern for the polity. The right questions have
not even begun to be asked.
Notes
1. The Independent
Broadcasters Group
is comprised of the Aboriginal Peoples Television Network Incorporated;
BBC Kids; Channel Zero Inc.; Ethnic Channels Group Limited;
Hollywood Suite Inc.; OUTtv Network Inc.; Stingray Group Inc.; Super
Channel (Allarco Entertainment); TV5 Québec Canada; and
Zoomer
Media Limited. (as of January 2019)
2. The Canadian
Association of
Broadcasters describes itself as "the national voice of Canada's
private broadcasters, representing the vast majority of Canadian
programming services,
including private radio and television stations, networks, specialty,
pay and pay-per-view services."
3. The various
security forces exercise
a dictate over what is considered a threat to Canadian values and to
the country's security in elections and in the media based on adherence
to official state policy. This was illustrated when officials from the
Communications Security Establishment of Canada appeared at an
Elections Advisory Committee of Political Parties meeting in 2017 to
brief the parties on their assessment of "threats to the Canadian
democratic process." The "values" which these agencies defend include
Canada's membership in NATO and the G7, etc. When asked by Anna Di
Carlo if calling for Canada's withdrawal from NATO constitutes a threat
to national security, a CSEC officer responded that his job is simply
to defend the policies of the government of the day.
4. David
Taras and Christopher Waddell, The End of the CBC? (University
of Toronto Press: Toronto, 2020).
This article was published in
Volume 51 Number 4 - April 4, 2021
Article Link:
https://cpcml.ca/Tmlm2021/Articles/M510043.HTM
Website: www.cpcml.ca
Email: editor@cpcml.ca
