What Should a new Broadcasting Act Look Like?
Saulnier analyzes the Broadcasting Act in the light of how it needs to be adapted to ensure the future of Canadian broadcasting.
Photo: Maarten van den Heuvel
To define what a future Broadcasting Act for Canada should look like, we have to begin at the beginning.
The work that led to the adoption of the current Broadcasting Act in 1991 began with the 1984 election of Brian Mulroney’s Progressive Conservatives, and particularly with the influence of his Minister of Communications, Marcel Masse.
Immediately upon his election, Minister Masse wanted to change several aspects of the law in force at the time, which had been adopted in 1968 under Pierre Trudeau’s Liberal government.
The communications world was in considerable turmoil. Special channels were progressively being established. All-news channels were appearing in the United States and the airwaves were giving way to cable and satellite distribution. Finally, CBC/Radio-Canada needed a redefined mandate, and the government wanted to reduce its size as part of necessary budget cuts to improve state finances.
Marcel Masse gave Gerald Caplan and Florian Sauvageau the responsibility to rethink our broadcasting system in depth. They tabled their commission’s report in 1986. Its main recommendation was to modernize the Broadcasting Act and to support Canadian content, mainly to counter the American juggernaut. (The contextual parallels with today are many.) In 2019, Canadian media and cultural content are once again threatened with marginalization by American media superpowers.
In an interview with the Radio-Canada program Le Point, Florian Sauvageau defined the challenge this way: “our programmers and creators need to have the financial means to compete with the Americans.” This statement in and of itself sums up the 80 recommendations in the Caplan-Sauvageau Commission’s report.
It would take five more years to give birth to a new Broadcasting Act for Canada – guided by Marcel Masse.
The 1991 law succeeded the 1968 law. Modernizing it took 23 years. If the current trend continues, it will have taken 30 years to once again renew the Act! And yet, the digital age has disrupted everything in its path in the Canadian media and cultural ecosystem.
Some say that we have to start from scratch because the current situation is so different. How different? Let’s take a closer look.
An attentive reading of the existing Act, operative since 1991, leads to several observations – mainly that many of its broad principles remain valid.
For example, the law says:
…the Canadian broadcasting system shall be effectively owned and controlled by Canadians; (article 3.1)
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While it’s true that it’s more difficult to establish the ownership of the companies that broadcast, create, distribute and produce in an era when foreign superpowers defy national borders and state regulation, the idea of “control” remains. The spirit of the Act is to support Canadian content and, with regard to our very distinct market, francophone content. For this reason, we need to return to the idea of “control” and define its desired scope to protect the Canadian and Quebec ecosystems adequately. Failing this, let’s not delude ourselves, deregulation will pave the way for American cultural imperialism.
The 1991 Act also specifies:
each element of the Canadian broadcasting system shall contribute in an appropriate manner to the creation and presentation of Canadian programming; (article 3.1 e)
“Creation and presentation of Canadian programming.” Now there’s a principle that is still relevant. Unless we have decided that Canada’s anglophone and francophone identities are no longer valuable enough and we should abstain from supporting them?
Further on, the 1991 ACT emphasizes the importance of interpretation.
(3) This Part shall be interpreted and applied so as to protect and enhance the freedom of expression and the journalistic, creative and programming independence enjoyed by the Corporation in the pursuit of its objects and in the exercise of its powers. (1991, Ch. 11. Art. 2)
Another principle that remains just as valid that rests on the very founding of this country:
Broadcasting Policy for Canada
Marginal note:
c) English and French language broadcasting, while sharing common aspects, operate under different conditions and may have different requirements;
The recognition of two distinct markets as at the heart of the Act and must be reproduced as is in the future Act.
The following point remains just as relevant:
d) The Canadian broadcasting system should
One short clause in a single sentence: “and the special place of aboriginal peoples within that society.” We have to correct this! The new version of the Act must provide the necessary tools to support the indigenous media and culture ecosystem, in a spirit of catching up and reparations. This must be made right! It is a principle of major importance.
And finally, among principles that remain relevant, an essential form of encouragement:
The role of the CRTC is specified:
Objects… Regulatory Policy
(2) The Canadian broadcasting system should be regulated and supervised in a flexible manner that
This mission must be maintained. The CRTC must be responsible for its application in the new ecosystem dominated by the foreign web superpowers.
An attentive reading of the existing Act, operative since 1991, leads to several observations – mainly that many of its broad principles remain valid.
In the same way, the Commission must reflect the general spirit of the Act – how? For example:
(d) facilitates the provision of broadcasting to Canadians;
(e) facilitates the provision of Canadian programs to Canadians;
When comes the time to rewrite a Broadcasting Act for Canada, the following corollary must also be reinstated:
Part II
Objects and Powers of the Commission in Relation to Broadcasting…
Regulations Generally
….
10 (1) (b) prescribing what constitutes a Canadian program for the purposes of this Act;
A regrettable parenthesis
Let’s introduce a parenthesis to make sure we remember that the CRTC missed a historical opportunity on May 17, 1999, in its Public Notice CRTC 1999-84 which says: “By not regulating, we hope to support the growth of new media services in Canada.”
Without a doubt, mission accomplished! For the last twenty years, this laxity has allowed the web superpowers to occupy more and more space in the Canadian ecosystem without being accountable to anyone at all.
Twenty years later, it must be said, the CRTC is opening its eyes. In a document published in January of 2019, it recommended:
To ensure a vibrant domestic market and be equitable to all players, it will be essential to develop better regulatory approaches that engage all audio and video services and for each to participate in the most appropriate ways in creating and promoting content by and for Canadians. Accordingly, if legislative change is to take place, it should clearly and explicitly make any video or audio services offered in Canada and/or drawing revenue from Canadians subject to the legislation and incorporate them into the broadcasting system. This should apply to traditional and new services, whether Canadian or non-Canadian1. (author’s emphasis)
End of the twenty-year parenthesis…
The current Act provides instructions with regard to the Free Trade Agreement:
Directions re Free Trade Agreement
27 (1) The Governor in Council may, either on the recommendation of the Minister made at the request of the Commission or on the Governor in Council’s own motion, issue directions of general application respecting the manner in which the Commission shall apply or interpret paragraph 3 of Article 2006 of the Agreement.
These instructions must change in the future Act to take into account the Canada-US-Mexico Free Trade Agreement. It is, however, relevant here to underline a word of caution from Véronique Guèvremont, law professor and UNESCO Chair on the Diversity of Cultural Expression at Laval University. At the CEMAD conference in Montreal, she indicated that it is likely that the idea of cultural exemption so dear to Quebec might be contested by US authorities. We know that the US cultural industries are hostile to all forms of cultural protectionism, notably that of francophones in Canada. In fact, the industry is of the opinion that there is no need for the digital economy to be at all concerned with cultural exemptions. Véronique Guèvremont warned against the conflict resolution mechanisms put in place by the new Agreement.
It is highly appropriate to mention that this idea of cultural exemption is akin to the expression ‘cultural sovereignty’. In Quebec, political journalists will remember that this expression was launched by Robert Bourassa’s provincial Liberal government in 1973.
It was also used by Clifford Lincoln, the federal Liberal who chaired the Standing Committee on Canadian Heritage. His committee published a report called Our Cultural Sovereignty in 2003.
The Lincoln report was unable to garner the support of all its members, since the Canadian Alliance was not onside. The report was nevertheless received very positively by the Minister of Canadian Heritage of the time, Liza Frulla.
In its second response to the report of the Standing Committee on Canadian Heritage, Reinforcing our Cultural Sovereignty, the government stated that Canada’s cultural sovereignty remained a relevant value even in the digital era.
The mandate of CBC/Radio-Canada remains at the heart of the 1991 Act. In this regard, it is important to note that the mandate was changed in the 1991 Act at the insistence of Minister Marcel Masse. He wanted to change the wording of the 1968 Act, which instructed the public broadcaster to promote national unity. The 1991 definition was changed to “reflect Canada and its regions”. In my book Ici était Radio-Canada /Losing our voice: Radio-Canada under siege, Richard Stursberg, who was Assistant Deputy-Minister of Communications in 1991, confirmed that the minister had wanted to remove what he saw as an invitation to the public broadcaster to veer into propaganda. (Ici était Radio-Canada, Éditions Boréal, p.109. 2014).
The current Act defines CBC/Radio-Canada’s mission as follows:
(l) the Canadian Broadcasting Corporation, as the national public broadcaster, should provide radio and television services incorporating a wide range of programming that informs, enlightens and entertains;
(m) the programming provided by the Corporation should
These strategic orientations remain relevant.
In June of 2014, I had the opportunity to conduct a long interview with former minister Marcel Masse about CBC/Radio-Canada. Without a doubt, he believed sincerely in the importance of a public broadcasting radio and television service.
In the course of this interview, I discovered that he had wanted to remove all advertising from public television.
“It was the mandate that had to be changed…we had to give it a clear and precise mandate: remove advertising…”
In his view, the dependence on advertising revenues contaminated television programming at CBC/Radio-Canada and therefore, did not allow it to distinguish itself from private networks.
I believe he was right, and that this issue is still topical.
However, this must be done not in the context of budget cuts but as part of a transition to a new business model for the public broadcaster.
In the end, there is a clear consensus: we must establish fiscal equity between the web superpowers and Canadian businesses. This challenge is common to both levels of government, provincial and federal.
In my view, these are the issues and challenges CBC/Radio-Canada faces in the coming decade:
- Ensuring a stable budget protected from annual government pressure.
- Planning a progressive withdrawal from advertising.
- In return, plan a transition to an alternative budget.
- For example, develop new sources of financing for the public broadcaster such as dedicated licence fees on the purchase of screens: mobile phones, tablets, television screens of all sizes, connected, 3D, etc. Forcer foreign superpowers to contribute: Apple, Samsung, Sony, etc.… Look at models in other countries.
CBC/Radio-Canada, a bulwark against the web giants for francophone culture:
- Part III. (p.35) Insert the idea of management independent from government.
- Part III (p.35) Correct the presidential appointment process so that it requires Parliamentary approval, perhaps through the Standing Committee on Canadian Heritage?
- Part III (p.35) Add a non-partisan appointment process for the members of the board.
- Part III (p.35) Add that the financing of the French-language Radio-Canada must not depend on the pro-rata of the population. This is a question of principle linked to the linguistic duality of the country. (This is part of the 1991 Act: C’est ce que disait la Loi en 1991: 3,(1) (m)(v) (v) strive to be of equivalent quality in English and in French,
Finally, beyond the mission of CBC/Radio-Canada, here are the major challenges of the future Broadcasting Act as I see them:
- Reclaim Canada’s cultural sovereignty in the new digital environment dominated by the foreign powers of the web. This is an important challenge for the future Act.
- The Internet is an essential service for democratic life in both information and culture. Regulate the cost of access to internet services.
- The principal of linguistic duality must be a integral to the Act and take into account the specific nature of the francophone market.
- Particular attention must be paid to indigenous cultures everywhere across the country, in a spirit of catching up and reparation.
- Re-establish the authority of the CRTC on all methods of broadcasting and distribution on Canadian territory. Another challenge of regulation and equity.
- CBC/Radio-Canada: reinforce and realign its mandate as a bulwark to counter the giants of the web as a public service distinct from the private sector (information and culture). Plan a staged retreat from advertising.
- CBC/Radio-Canada: develop new funding methods other than advertising and the annual subsidy from Parliament. Licence fees or royalties on the revenues of the web giants? On the sale of screens? Royalties from internet service providers? Take inspiration from European models.
- In the revision, harmonize the Broadcasting Act with the Copyright Act (also under review) and intellectual property legislation. A challenge to sustain creation here in this country.
- The exception for francophone culture must be maintained in the new Broadcasting Act and in the new ecosystem.
- Ensure the Act provides the greatest possible protection for personal data under the control of the web superpowers.
- Affirm web neutrality.
- The Act must provide a better control over algorithms and artificial intelligence, fostering the ‘discoverability’ of our content.
- The new Broadcasting Act must help the media to counter disinformation and ‘fake news’ on social media.
- Politically, the governments of Canada and Quebec must promote alliances in the Francophonie and the export of francophone culture abroad.
- In the end, there is a clear consensus: we must establish fiscal equity between the web superpowers and Canadian businesses. This challenge is common to both levels of government, provincial and federal.
A lot of work lies ahead…
This text is based on a presentation at CEMAD, the Special Montreal Conference on the future of francophone broadcasting, distribution, creation and production in the digital era, held on January 24 , 2019. www.cemad.ca/
1Harnessing Change: The Future of Programming Distribution in Canada, CRTC January 2019.