On September 29, 2023, the Canadian Radio-television and Telecommunications Commission (CRTC) issued its first two decisions regulating online broadcasting undertakings, which include video and audio streaming services, and social media services. These decisions will have important implications for many online undertakings operating in Canada as they impose obligations to register with the CRTC and comply with several conditions of services, as outlined below.
The CRTC decisions are the result of two parallel public consultation processes that ran from May 12, 2023 to July 12, 2023. They are the first of several decisions the CRTC is expected to issue as it works towards implementing certain changes to Canada’s Broadcasting Act enacted in April 2023 by the Online Streaming Act, also known as Bill C-11. For additional information on Bill C-11, please see our Blakes Bulletin: Parliament Enacts Bill C-11 to Amend Canada’s Broadcasting Act.
Broadcasting Regulatory Policy CRTC 2023-329 and Broadcasting Order CRTC 2023-330
Broadcasting Regulatory Policy CRTC 2023-329 issues the Online Undertakings Registration Regulations (Registration Regulations) and exempts certain classes of undertakings from the Registration Regulations through Broadcasting Order 2023-330 (Exemption Order).
As a result, all entities operating an online undertaking in Canada, except those subject to the Exemption Order discussed below, must register with the CRTC by November 28, 2023, using the CRTC’s prescribed form and online submission process. Registration is intended provide the CRTC with basic information about online undertakings operating in Canada.
Pursuant to the Registration Regulations, operators of online undertakings are required to submit:
Their name and contact information
Their place of incorporation and head office
Their online undertakings’ names, and
A description of the broadcasting services offered by each online undertaking
Online undertakings who are required to register are also required to submit certain prescribed financial information to the CRTC by November 30, 2023.
The Exemption Order sets out which online undertakings are not required to register with the CRTC. These are undertakings which individually, or as part of a broadcasting ownership group, have less than C$10-million in annual Canadian gross broadcasting revenues, and undertakings whose single activity and purpose consists of providing either video game services or audiobook services.
Broadcasting Regulatory Policy CRTC 2023-331 and Broadcasting Order CRTC 2023-332
Broadcasting Regulatory Policy CRTC 2023-331 imposes conditions of service on certain online undertakings operating in Canada. Prior to this decision, many online undertakings operated under the light broadcasting compliance framework set out in the CRTC’s longstanding Exemption order for digital media broadcasting undertakings (DMEO). In this decision, the CRTC repealed the DMEO and is subjecting online undertakings to a new regulatory framework, as contemplated by Bill C-11. As part of this framework, the CRTC is imposing obligations on online undertakings operating in Canada relating to information gathering, undue preference and undue disadvantage, making content available over the internet and financial information filing.
Notably, the condition respecting information gathering applies to all online undertakings operating in Canada regardless of annual Canadian gross revenues, except undertakings whose single activity and purpose consists of providing either video game services or audiobook services. The remaining conditions of service do not apply to online undertakings subject to the Exemption Order.
The condition of service related to undue preference and undue disadvantage prohibits online undertakings from giving undue preference to any person, including themselves, or subjecting any person to undue disadvantage. The amended Broadcasting Act provides the CRTC with the power to hold a proceeding in response to an undue preference or undue disadvantage complaint involving an online undertaking, where the onus is on the online undertaking to prove the practice is not an undue preference or disadvantage. The CRTC stated that it intends to hold future consultations on a comprehensive framework with respect to the undue preference and undue disadvantage rule as it applies to online undertakings.
The decisions impose several new obligations on many online undertakings operating in Canada, including an obligation to register with the CRTC by November 28, 2023 and to file prescribed financial information by November 30, 2023. Online undertakings should carefully review these new obligations and begin compiling the information required to complete any applicable filings by their due date.
The CRTC is also continuing to consult on aspects of Canada’s new broadcasting framework, in accordance with its Regulatory Plan to Modernize Canada’s Broadcasting System. In November 2023, it will hold a public hearing to address initial financial contributions by online undertakings to support Canadian and Indigenous content. Over the next year, the CRTC’s regulatory plan contemplates consultations on many other broadcasting issues, such as the definition of Canadian and Indigenous content, tools for supporting video and audio content, competition in the broadcasting sector and consumer protection. Online undertakings should carefully monitor the status of these consultations and consider submitting comments to the CRTC on issues that may impact their Canadian operations.
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