On April 27, Bill C-11, the Online Streaming Act (OSA), received royal assent. This new law amends the Broadcasting Act and will have significant implications for providers of digital streaming services.
The OSA creates a new class of broadcast undertakings (“online undertakings”) under the Broadcasting Act and subjects them to a number of new requirements comparable to those already imposed on traditional radio and television broadcasters in Canada. The OSA defines “online undertaking” broadly as an undertaking for the transmission or retransmission of programs over the Internet for reception by the public by means of broadcasting receiving apparatus – a definition that could capture streaming services and social media platforms.
However, the OSA is apparently intended to apply only to commercial content distributed on social media services. Posts by individual users who are unaffiliated with the service provider are excluded from its application. As the Department of Canadian Heritage has stated, “The focus of the Online Streaming Act is on the streaming services,” and that the obligations imposed on online undertakings are applicable to social media platforms only where these platforms “act as substitutes for other broadcasters, including streaming services.”1
Canadian content requirements
As a result of the OSA, online undertakings will now be required to pay for and promote Canadian content in the same way as traditional broadcasters must already do so. In particular, the OSA empowers the CRTC to require digital media companies to contribute to the financing of Canadian programming, such as by contributing to the training of Canadian content creators, the production of Canadian media, or by making contributions to a fund administered by the CRTC, such as the Canada Media Fund.
As part of an effort to support Canadian content, the OSA also extends the CRTC’s authority to make orders requiring carriage of certain programming or “channels” to online streaming services. Additionally, streaming services must clearly recommend Canadian content on their platforms in both official languages and Indigenous languages, and ensure the “discoverability” or visibility of Canadian content. Stakeholders are expected to be given the opportunity to make submissions to the CRTC in the manner by which the CRTC will regulate discoverability.
The OSA also includes several measures to enhance the promotion of diverse and accessible content. The OSA empowers the CRTC to create requirements for all broadcasters to provide programming that is accessible to persons with disabilities, and to facilitate the provision of media to Canadians produced by members of racialized communities.
The OSA empowers the CRTC to issue conditions to online streaming services, and to impose fines in the event of non-compliance. Among other reasons, the OSA exposes broadcasters to liability if they fail to meet certain accessibility obligations under the Accessible Canada Act. A corporation could be subject to a maximum fine of $10 million for a first offence and $15 million for a subsequent offence.
The OSA represents the first substantive amendments to the Broadcasting Act since 1991, with important implications for digital media companies. We are closely monitoring the CRTC’s implementation of the OSA and remain available to provide assistance in complying with the OSA’s new requirements, engaging with the CRTC on the forthcoming regulatory framework implementing the new statutory provisions, and to advise on potential legal challenges.
The author wishes to thank Sarah Fooks and Zack Goldford, articling students, for their help in preparing this legal update.