Bill C-11’s Foundational Faults, Part Two: The Regulate-It-All Approach of Treating All Audio-Visual Content as a “Program”

My first post in a series on foundational faults in Bill C-11 focused on the virtually limitless reach of the CRTC’s jurisdictional power over audio-visual services. The starting point in the bill is that all audio-visual services anywhere in the world with some Canadian users or subscribers are subject to the Canadian jurisdiction and it will fall to the Commission to establish thresholds exempting some services from regulation. However, even with some exemptions, the Canadian approach will require registration and data disclosures, likely leading many services to block Canada altogether, reducing choice and increasing consumer cost.

The expansive approach in Bill C-11 isn’t limited to its jurisdictional reach, however. Not only does the law have few limits with respect to which services are regulated, it is similarly over-broad with respect to what is regulated, featuring definitions that loop all audio-visual content into the law by treating all audio-visual content as a “program” subject to potential regulation.

The Broadcasting Act defines a program as:

program means sounds or visual images, or a combination of sounds and visual images, that are intended to inform, enlighten or entertain, but does not include visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text

Program is therefore broadly defined to capture any audio-visual content provided that it is not predominantly text. Bill C-11 then defines broadcasting as:

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;