Tuesday, June 21, 2022

Senate Begins Consideration of Bill C-11

The Senate has now begun an unusual “pre-study” of Bill C-11, the very controversial bill designed to force the internet into the broadcasting framework, and to update the Broadcasting Act and, in the process, give enormous new power to the CRTC. Michael Geist has covered this in terrific detail.

Today, June 22, 2022 he and the Hon. Konrad von Finckenstein, Q.C. testified before the Senate on Transportation & Communication. The video is available here.

Konrad von Finckenstein is a long standing legend in the Canadian public service. He was the lead counsel for the Canada/US Free Trade Agreement in the 1980’s, the Commissioner of Competition, a Federal Court Judge, and the Chair of the CRTC. Nobody else in Canada has such a remarkable breadth of knowledge, experience and policy acumen. He is still very active and contributing in the policy space, e.g. here with Jim Mitchell on May 4, 2022 on Bill C-11.

So, his testimony today was and will be very important. Here is the text of his speaking notes (he was only permitted six minutes) and his Annex, which details five specific amendments included below for convenience:

Annex A


Clause 2 of the bill is  amended by adding the following subsection 2(4)

Exclusion- Minor Online Undertakings

(4) This Act applies only to on line undertakings which have more than 100 000 subscribers in Canada or revenue in excess of 100 million from Canada.


Clause  4 of the Bill is amended by  adding the following subsection 2.1

Limitation on Regulations

2.1 Regulations made under sub section 2 (b)

i)                 apply to on line undertakings with paid subscriptions or embedded advertising that transmit, both their own or commercial content and user generated content, and   

ii)               must be constructed in such a manner that user generated content is not affected.


Clause 3(2) of the bill is amended by adding the following :

(2.1) Paragraph 3(1)d)(i) of the Act is amended by adding the following:

(i.1) reflect and be responsive to the preferences and interests of its audiences;

(i.2) to the extent possible rely on market forces to ensure that Canadians obtain the programming of their choice;


Clause 13 of the Bill is amended  by adding  the following subsection  2.1 to section 11 of the act

2.1 For greater certainty

2.1 Conditions imposed or regulations made by the Commission regarding on line undertakings pursuant to sections 9.1, 10 or 11

1) shall

a)     not compel on line undertakings to change the methods by which they ascertain viewer’s choice

b)     respect viewers choices and leave them unaltered

2) may however require on line undertakings to offer Canadian program alternatives as an addition to viewers’ choices


Clause 14 of the bill is amended by adding the following after s.11.1 (5)

Eligibility to Benefits

(5.1) Where a foreign owned online undertaking is required pursuant to section 11.1 to pay an expenditure to a person or organization, or into any fund, that undertaking shall be eligible to the benefits available from any such person, organization or fund as if it were Canadian owned and controlled.

Today's hearing was off to a great start - and the Senate will hopefully provide the sober, second and thorough democratic consideration and necessary revision to the proposed legislation that Minister Pablo Rodriquez has denied in the House of Commons.