Social media platforms want total exclusion from new broadcasting regime

Social media companies are asking the CRTC to be added to the list of exempt services under the updated Broadcasting Act despite the government expliciting directing the commission not to regulate any online undertakings in respect of the programs of social media creators, including podcasts. Earlier this week the commission published interventions on two interrelated consultations regarding the Online Streaming Act which was recently passed by Parliament: one on how to define which online undertakings must register with the CRTC and whether to repeal the digital media exemption order (DMEO) or the video-on-demand (VOD) exemption order (VODEO). “It is the commission’s view that some basic regulatory oversight for online undertakings should be maintained until the numerous issues that will need to be dealt with in the transition to the current Broadcasting Act can be more fully addressed,” the commission wrote in the latter consultation. “Such oversight would serve to ensure symmetry between online undertakings and licensed broadcasters in respect of requirements set out in the current exemption orders, such as the prohibition on giving an undue preference, and the requirement to provide basic information to the commission.” Under the updated Broadcasting Act, online audio and video undertakings do not need to hold a licence nor an exemption order and as a result “the DMEO and VODEO no longer appear to be the appropriate tools for regulating these undertakings,” according to the commission. The commission also set out criteria on who would be exempt from the online undertaking registration requirement and the conditions of services. Both consultations used the same criteria – it exempted online undertakings whose single activity consists of providing video games services or consists of providing unique transactions. It also set a $10 million revenue threshold which was also heavily debated by intervenors. Meta Platforms Inc. called out the commission for issuing its own consultation and deadline before the public had time to submit consultations on the Governor in Council’s draft proposed policy direction. “The avoidable overlap and potential complexities of debating the impacts of certain policy choices in the absence of clarity on foundational issues, such as the definition of ‘social media’, ‘social media service’ and ‘broadcasting receiving apparatus’ – is exacerbated by the fact that has just been published for public comment, two days prior to the deadline for these comments,” Meta wrote. University of Ottawa professor Michael Geist was among those calling for more time to consider the implications of the new act. The CRTC rejected a call from a dozen groups asking for an extension of the deadline to comment. The Internet Society lamented that action. The Forum for Research and Policy in Communications said the regulator has had plenty of time to gather information necessary for a robust debate. Digital First Canada and Google also decried the narrow timelines. Pelmorex Weather Networks said it needed more information about the regulations than the commission was providing. Meta argued that its services do not primarily consist of broadcasting and any programs that may arguably be considered broadcasting are user-generated. The government has long insisted that social media platforms must be scoped in to capture commercial content while user-generated content would be scoped out of the bill. However, Meta argued that any traditional broadcasting that can be found on its platforms “are minimal and entirely ancillary” to its services and it would not contribute to the advancement of the broadcasting policy set out in the Broadcasting Act. "If the CRTC were to decide that platforms hosting user-generated content somehow qualify definitionally as ‘online undertakings,’ then it should amend the proposed exemption order to exempt from any conditions of service social media undertakings.” Meta maintained. TikTok Technology Canada Inc. also urged the commission to “expressly exempt” social media services from any conditions of service to further ensure that social media content is protected from regulation. The company further argued that it already levels the playing field. “TikTok has levelled the playing field for Canadian content creators, allowing anyone to gain a following regardless of who they are, where they live, or what type of content they create. In contrast to the high barriers to entry for traditional media, which include high costs and gatekeepers, all you need to create, share, and find an audience for your content on TikTok is a phone and an internet connection,” the company wrote. The Writers Guild of Canada argued that the commission’s definition of unique transaction – “a one-time rental or purchase of an individual program transmitted or retransmitted over the internet” – would exclude services like Apple Inc.’s iTunes, VOD, and pay-per-view (PPV) services from registration and the conditions of service. “Exempting such undertakings does not seem consistent with past or current regulation of the Canadian broadcasting system,” the guild wrote. “ Not only has the Commission required such services to be licensed in the past, but has imposed substantive regulatory obligations upon them.” TV Ontario also wondered why transactional VOD was excluded from the list of services covered, as did the Canadian Association of Broadcasters (CAB), Corus Entertainment Inc. and Netflix Services Canada ULC. CBC/ Radio-Canada also called on the commission to do away with its “unique transaction” exemption criteria, arguing that any company which can materially contribute to the Canadian broadcasting system should do so regardless of their business model. The Ontario Association of Broadcasters called for the exemption of streaming existing over-the-air content. The CAB, Bell and Corus want news content removed from consideration. PBS wants a carve-out for non-profits with funding from donations and non-Canadian government sources. Apple wants to exempt fitness and podcast services. The Information Technology Institute and Spotify called for podcast exemptions and added social media platforms hosting user generated content and audiobooks. The ITI also raised the spectre of violations of the Canada United States Mexico Agreement on free trade. Bragg Communications Inc. subsidiary Eastlink wants virtual broadcast distribution undertakings (BDUs) and free ad-supported streaming television services (FAST) to be required to register. – Reporting by Jenna Cocullo at jcocullo@thewirereport.ca with files and editing from Paul Park at ppark@thewirereport.ca.

Social media platforms want total exclusion from new broadcasting regime

News | June 16, 2023

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Social media platforms want total exclusion from new broadcasting regime

News | June 16, 2023

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