Online Streaming Act (S.C. 2023, c. 8)

• Published date: 27 October 2023
• Date: 27 April 2023
• Gazette Issue: 1 - [object Object]
• Section: Part III - Acts of Parliament

S.C. 2023, c. 8

Assented to 2023-04-27

An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts

SUMMARY

This enactment amends the Broadcasting Act to, among other things,

• (a) add online undertakings — undertakings for the transmission or retransmission of programs over the Internet — as a distinct class of broadcasting undertakings;

• (b) specify that the Act does not apply in respect of programs uploaded to an online undertaking that provides a social media service by a user of the service, unless the programs are prescribed by regulation;

• (c) update the broadcasting policy for Canada set out in section 3 of the Act by, among other things, providing that the Canadian broadcasting system should

  • (i) serve the needs and interests of all Canadians, including Canadians from Black or other racialized communities and Canadians of diverse ethnocultural backgrounds, socio-economic statuses, abilities and disabilities, sexual orientations, gender identities and expressions, and ages, and

  • (ii) provide opportunities to Indigenous persons, programming that reflects Indigenous cultures and that is in Indigenous languages, and programming that is accessible without barriers to persons with disabilities;

• (d) enhance the vitality of official language minority communities in Canada and foster the full recognition and use of both English and French in Canadian society, including by supporting the production and broadcasting of original programs in both languages;

• (e) specify that the Canadian Radio-television and Telecommunications Commission (the “Commission”) must regulate and supervise the Canadian broadcasting system in a manner that

  • (i) takes into account the different characteristics of English, French and Indigenous language broadcasting and the different conditions under which broadcasting undertakings that provide English, French or Indigenous language programming operate,

  • (ii) takes into account, among other things, the nature and diversity of the services provided by broadcasting undertakings,

  • (iii) ensures that any broadcasting undertaking that cannot make maximum or predominant use of Canadian creative and other human resources in the creation, production and presentation of programming contributes to those Canadian resources in an equitable manner,

  • (iv) promotes innovation and is readily adaptable to scientific and technological change,

  • (v) facilitates the provision to Canadians of Canadian programs in both official languages, including those created and produced by official language minority communities in Canada, as well as Canadian programs in Indigenous languages,

  • (vi) facilitates the provision of programs that are accessible without barriers to persons with disabilities,

  • (vii) facilitates the provision to Canadians of programs created and produced by members of Black or other racialized communities,

  • (viii) protects the privacy of individuals who are members of the audience of programs broadcast, and

  • (ix) takes into account the variety of broadcasting undertakings to which the Act applies and avoids imposing obligations on any class of broadcasting undertakings if that imposition will not contribute in a material manner to the implementation of the broadcasting policy;

• (f) amend the procedure relating to the issuance by the Governor in Council of policy directions to the Commission;

• (g) replace the Commission’s power to impose conditions on a licence with a power to make orders imposing conditions on the carrying on of broadcasting undertakings;

• (h) provide the Commission with the power to require that persons carrying on broadcasting undertakings make expenditures to support the Canadian broadcasting system;

• (i) authorize the Commission to provide information to the Minister responsible for that Act, the Chief Statistician of Canada and the Commissioner of Competition, and set out in that Act a process by which a person who submits certain types of information to the Commission may designate the information as confidential;

• (j) amend the procedure by which the Governor in Council may, under section 28 of that Act, set aside a decision of the Commission to issue, amend or renew a licence or refer such a decision back to the Commission for reconsideration and hearing;

• (k) specify that a person shall not carry on a broadcasting undertaking, other than an online undertaking, unless they do so in accordance with a licence or they are exempt from the requirement to hold a licence;

• (l) harmonize the punishments for offences under Part II of that Act and clarify that a due diligence defence applies to the existing offences set out in that Act; and

• (m) allow for the imposition of administrative monetary penalties for violations of certain provisions of that Act or of the Accessible Canada Act.

The enactment also makes related and consequential amendments to other Acts.

His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short Title

Marginal note:Short title

1 This Act may be cited as the Online Streaming Act.

1991, c. 11Broadcasting Act

• 2 (1) The definitions broadcasting, broadcasting undertaking, distribution undertaking, network and programming undertaking in subsection 2(1) of the Broadcasting Act are respectively replaced by the following:

  broadcasting

  broadcasting means any transmission of programs — regardless of whether the transmission is scheduled or on demand or whether the programs are encrypted or not — by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any such transmission of programs that is made solely for performance or display in a public place; (radiodiffusion)

  broadcasting undertaking

  broadcasting undertaking includes a distribution undertaking, an online undertaking, a programming undertaking and a network; (entreprise de radiodiffusion)

  distribution undertaking

  distribution undertaking means an undertaking for the reception of broadcasting and its retransmission by radio waves or other means of telecommunication to more than one permanent or temporary residence or dwelling unit or to another such undertaking, but does not include such an undertaking that is an online undertaking; (entreprise de distribution)

  network

  network includes any operation where control over all or any part of the programs or program schedules of one or more broadcasting undertakings is delegated to another undertaking or person, but does not include such an operation that is an online undertaking; (réseau)

  programming undertaking

  programming undertaking means an undertaking for the transmission of programs, either directly by radio waves or other means of telecommunication or indirectly through a distribution undertaking, for reception by the public by means of broadcasting receiving apparatus, but does not include such an undertaking that is an online undertaking; (entreprise de programmation)

• (2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

  affiliate

  affiliate, in relation to any person, means any other person who controls that first person, or who is controlled by that first person or by a third person who also controls the first person; (affilié)

  barrier

  barrier has the same meaning as in section 2 of the Accessible Canada Act; (obstacle)

  community element

  community element includes the element of the Canadian broadcasting system as part of which members of a community participate in the production of programs that are in a language used in the community including a not-for-profit broadcasting undertaking that is managed by a board of directors elected by the community; (élément communautaire)

  control

  control, in the definition affiliate, in paragraph 9.1(1)(m) and in subparagraph 9.1(1)(n)(i), includes control in fact, whether or not through one or more persons; (contrôle)

  decision

  decision includes a determination made by the Commission in any form; (décision)

  Indigenous peoples

  Indigenous peoples has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982; (peuples autochtones)

  official language minority community

  official language minority community means English-speaking communities in Quebec and French-speaking communities outside Quebec; (communauté de langue officielle en situation minoritaire)

  online undertaking

  online undertaking means an undertaking for the transmission or retransmission of programs over the Internet for reception by the public by means of broadcasting receiving apparatus; (entreprise en ligne)

  programming control

  programming control means control over the selection of programs for transmission, but does not include control over the selection of a programming service for retransmission; (contrôle de la programmation)

• (3) Subsection 2(3) of the Act is replaced by the following:

  • Marginal note:Exclusion — carrying on broadcasting undertaking

    (2.1) A person who uses a social media service to upload programs for transmission over the Internet and reception by other users of the service — and who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them — does not, by the fact of that use, carry on a broadcasting undertaking for the purposes of this Act.

  • Marginal note:Exclusion — social media service and programming control

    (2.2) An online undertaking that provides a social media service does not, for the purposes of this Act, exercise programming control over programs uploaded by a user of the service who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them.

  • Marginal note:Exclusion — certain transmissions over the Internet

    (2.3) A person does not carry on an online undertaking for the purposes of this Act in respect of a transmission of programs over the Internet

    • (a) that is ancillary to a business not primarily engaged in the transmission of programs to the public...