Episode 38: Debating the Broadcast Panel Report - A Conversation with BTLR Panel Chair Janet Yale

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Michael Geist:
This is Law Bytes, a podcast with Michael Geist.

Evan Solomon:
There is a concern that the panel wants to regulate international companies as well. So let me take an example of a controversial site like Breitbart. How would the government force a company like Breitbart? I don’t know. The New York Times, Mother Jones, The Daily Mail. How would they force those companies to comply with rules of Canadian content? Discoverability. And if they don’t comply, what happens? Will Canadians be blocked from accessing international sites?

Steven Guilbeault:
I don’t think that’s what’s recommended in the report that that these sites be blocked in Canada. I’m frankly not sure I see what the big deal is.

Evan Solomon:
So you said no to licence, and now you’re saying no to registration as well. Just so people know there’s a licence element. But it recommends that media content companies, all of themL websites, broadcasters, anyone that produces media content that’s in the report has to register and they’re subject to levies. Are you saying there’s no registration?

Steven Guilbeault:
That’s a recommendation by this panel. In terms of what the bill will contain what we will ask the Netflix and Amazon Prime and Disneys of this world to contribute to in terms of Canadian cultural content, content and what tools, will we use. I can’t answer that because I seems like to me.

Evan Solomon:
On Sunday on CTV’s Question Period, and you said, yeah, we’re gonna license media companies and organizations, will be licensed. That’s no big deal. What were you actually meaning.

Steven Guilbeault:
What I’m saying is that the regulations that we will have will apply to companies that are operating in Canada just like our laws and regulations apply to any company’s.

Michael Geist:
The release of the much anticipated broadcasting and telecommunications legislative review panel report late last month sparked a torrent of discussion and debate. The 235 page report, often referred to as the BTLR or Yale report, features 97 recommendations that covers telecom, broadcast, the future of the CBC, online harms, digital taxation, and a myriad of other issues. The report almost immediately hit the political spotlight since, as you just heard, Canadian Heritage Minister Steven Guilbeault initially downplayed recommendations to regulate the delivery of online news and attempted to walk back some of his comments.

Michael Geist:
I’ve been posting frequently on the report and its implications at my Web site at MichaelGeist.ca. I’m very grateful that Janet Yale, the panel chair, agreed to meet and come on the podcast. Janet has been a leader in the communications law field in Canada for many years, having worked at Telus, the Canadian Cable Television Association, the CRTC and the Consumers Association of Canada. Our wide ranging conversation touches on the policy objectives of the panel, the news regulation concerns, net neutrality, consumer costs, and a host of other issues.

Michael Geist:
Janet, thanks so much for joining me on the podcast.

Janet Yale:
It’s a pleasure to be here.

Michael Geist:
OK. It’s really good of you to come on. As you know, I’ve got a lot to say. Got all of it positive about some of the report. And so to have you come on and talk about it. I think it is really fantastic. There has been a lot already and we’re recording this on on Tuesday, February the 4th. There’s been already a lot discussed. It’s come up in the House of Commons. I’ve got a bunch of issues I wanted to talk about respect to content, a little bit on process as well. But given that so much of the focus right now is on content, that’s where. And content recommendations, that’s what we’ll focus. I wanted to start, though, by giving you an opportunity to identify for those that are new to this a bit more about the panel and what it recommended.

Janet Yale:
Thank you for giving me the opportunity to set the stage for the conversation. I know the content issues are of great interest to people, but I think you have to understand what we did in a broader context. So we were given the opportunity to review three pieces of legislation: the Telecom Act, the Broadcasting Act and the Radio Communication Act. And to make recommendations for legislative reform. And in that context, we had to think about, well, why does it matter to reform these three pieces of legislation? So we looked at it from the perspective of the individual, the user. We looked at it from the perspective of economic competitiveness and from the perspective of cultural policy and from an individual perspective. One of the most fundamental principles we state in the report, many times, is that everyone deserves a connected life, one that allows them through broadband connectivity, wireline, wireline or wireless to be able to connect to other people, to news and entertainment, and to enjoy the economic opportunities that are associated with having broadband connectivity. And there are a whole bunch of recommendations we don’t have to get into around how to ensure there is universal, affordable access to broadband connectivity.

Janet Yale:
The second area is about the economy and the potential for economic transformation associated with advanced telecommunications networks in terms of new business models that may emerge, the ability of businesses to compete both domestically and internationally, leveraging advanced networks. And we have a whole bunch of recommendations around how to accelerate the rollout of advanced networks. So those are two big pieces.

Janet Yale:
And then the third piece is the cultural policy piece, where we state that in a world of endless choices and voices, we want a place for Canadian voices, for Canadian perspectives, both in terms of news and entertainment. So we looked, given those three, the individual, the economic and the cultural and said, well, we have to embrace the fact that this is an open global market where people should be able to access content anywhere, from any place, on any device, on any platform, without restriction. However, we also said that there has to be a principle of fairness. So those service providers that are benefiting from operating in the Canadian market through advertising or subscription revenues must contribute on a like for like basis with those that are already contributing. And primarily, if you think about streaming services like Netflix, we said those who benefit through subscription revenues should invest in Canadian content while preserving freedom of expression online. So I would say at the highest level, that’s our framework.

Michael Geist:
All right. That’s a good start. And I should note that I think it’s unfortunate that a lot of the really good recommendations around public participation, around access are being overshadowed, at least for the moment. But we’ll see how this whole plays. All these issues play out. And it certainly is in the realm of possibility one would hope that there will be an opportunity to resurface some of those and see that some of them go forward because it’s clear a lot of work went into it. I think there’s a lot of value there.

Michael Geist:
That said, as we sit here today recording this, a lot of the focus, at least for the moment, is even on just a part of the broader cultural component, which has to do with news organizations. The Heritage minister last night called them news agencies, which isn’t a term that you use, but it’s one that he started using. And there has been a lot of concern about the prospect that the recommendations would capture and effectively regulate the news organizations. When we start by saying with your perspective on what you were trying to achieve and what you think the report says on that.

Janet Yale:
Well, let me be clear at the outset, we do not recommend that journalism news organizations be licensed or regulated because we are emphatic in the principle of journalistic independence, enshrining that in the legislation. And moreover, enshrining the right in the Telecommunications Act to a free and open Internet. Because we embrace the open global market where people should be able to access any content they want, news or entertainment, from anywhere at anytime. So let me be really clear. We do not propose regulating news online. Having said that, we do recognize that there are platforms that are enabling the sharing of news without compensation. So if you think back to the days when people started streaming music without compensating the creators of the music. There was concern about how do we ensure appropriate compensation for the creators of content, that is the issue we focused on that those platforms that are enabling the sharing of news content from journalists, from news organizations without compensation should contribute and ensure that there is compensation for journalism. We were focusing on the compensation issue, not regulation of news online. And that’s very clear in our report.

Michael Geist:
Ok. But if you’re if I’m a Reddit, let’s say where there is a lot of sharing of news you’re suggesting. And so they would qualify presumably as one of these news aggregators. They would be subject to a levy. They would be subject to some kind of registration as opposed to a license, I would think as part of this system.

Janet Yale:
So one of the things we said is on a platform, technology neutral basis, that all media content undertakings are subject to exemption by the CRTC. And we’ll get to exemptions in a minute. All media content undertakings, including those that provide news content if it’s relevant for cultural policy purposes should register. So it’s not a gatekeeping licensing function where there’s an assessment as to whether or not what they’re proposing to do is appropriate or judging the content. It’s just a very simple registration scheme that would allow the commission to the extent that those platforms enable the sharing of media content, which includes news content, would report to the CRTC on the advertising or subscription revenues as the case may be. And the levy applied to support the production of news.

Michael Geist:
So just, you know, for many people, I think of my kids or students, the younger generations, they often do access, of course, news through these kinds of sites. They ultimately end up, of course, at the underlying news site, but they use this as their filter to identify the kind of things they’re interested in. It seems to me that the the list of recommendations for these news aggregators includes, as you say, some sort of registration requirements or going to tell, let’s say, a Reddit or a Drudge Report or a range of other services that include this kind of content they’ve got to register. They’ve got to pay a levy into the Canadian system. They’ve got to report financial information. They’ve got to report readership information back to the CRTC. And they will be subject to the discoverability requirements where the CRTC is able to say. You’ve also got to include within this links to trusted news sites, Canadian news sites. We will determine what those are. And we will also tell you how to ensure that they are sufficiently prominent so people can find them.

Janet Yale:
Well, there’s a lot packed into that. Let’s take it one piece at a time. I guess the real question is, is there a crisis in news? We think there is the traditional models to support news have fallen apart because of the flight of advertising and subscription revenues that used to be supporting print journalism and the collapse of community and local newspapers in both Anglophone and Francophone markets is very severe. So if you believe that there is a problem, which we do, then the question is how do we solve it? There are a couple of options that you can consider. We felt that those who are aggregating or enabling the sharing of media content, both entertainment and news, are benefiting from offering service to Canadians through advertising and subscription revenues. And it’s only appropriate, therefore, on a like for like basis with Canadian service providers that they make a contribution in some cases. It’s a direct investment, like with Netflix. In other cases where they’re not involved in the creation themselves of content like news aggregators, that the contribution then would be in the form of a levy. But if you’re playing in the Canadian market and benefiting from the Canadian market, then then we believe that you should make a contribution and that is while respecting freedom of expression. We’re not. And that’s where some of your question I think is different than, assumes something different than what we say in our report. We are not suggesting that any of these news aggregators need permission or authorization or any. There is complete editorial independence because for all of these sites, we are not suggesting anything that contradicts freedom of expression, interference with the nature of the content or anything that would in any way compromise journalistic independence. What we’re saying is simply that many people rely on those sites for their consumption of news without any compensation to the news organizations and the journalists that create that content. And that’s not fair.

Michael Geist:
I mean, you perhaps for another day we can have the debate about the compensation model because of course, for those sites, the links to go back to the underlying sites and those sites tend to be ad based models in terms of how they generate revenue or paywalls. And this introduces them to the service and then they may subscribe. So I’m not totally sure that it’s true that there isn’t any compensation along the way. But but that’s not really the crux here. I mean, the crux here is I’ve haven’t heard you say no to that list that I provided in terms of how these sites get regulated in effect. You’re simply saying it’s it’s a worthwhile trade off from a financial perspective to help. And effectively, it sounds like you’re arguing that the discoverability requirements, having a regulator say you’ve got to include links to these sites. We’re gonna determine what they are and we’re going to tell you how prominent they are is somehow not interfering with their expression.

Janet Yale:
I guess it depends how you define regulation. I you know, regulation isn’t gatekeeping. Regulation isn’t interfering with journalistic independence. And we say countless times in the report that we want more diverse, more sources of news and information online and that freedom of expression and journalistic independence is fundamental to a vibrant, healthy democracy. And the best protection against misinformation and fake news is more creation of accurate, trusted and reliable sources of news. So I just want to be crystal clear, because this isn’t about controlling what news people get, when they get it, and how they get it.

Janet Yale:
Having said that, in the case of news, we talk about the fact that most Canadian news sources are Canadian. Most of the content on Canadian news sites is the news site is coming from Canadian sources. That’s why we say where are these sites, where there is editorial control of the content, they’re not subject to these obligations in terms of either a levy or a discoverability. It’s dealing with sites like Facebook that are global platforms that enable the sharing of content from multiple sources. And how do we ensure that among the choices available to Canadians are Canadian stories and Canadian choices and Canadian perspectives? So I keep coming back to this notion that in a world of endless choices and voices, we want to ensure that there are Canadian choices and both in terms of entertainment and in terms of local, regional and national news and a Canadian perspective on international news. All we’re saying is there should be a place for those Canadian choices and the CRTC should be able to ensure that those choices are discoverable.

Michael Geist:
I mean, it sounds like we’re at the same place in terms of what you’re doing, but obviously a different perspective on or at least providing your perspective on why you’re doing it. One quick thing before I move on, though. You know, to what extent do you think when, as you were crafting these kinds of recommendations and this thinking, essentially you have Facebook sort of in your mind and so you’re thinking Facebook has become such an important player in this, generating a lot of ad revenue. We’ve got to capture this. And then once it comes out, you get this myriad, as you say, there’s almost endless voices of people who point to all these other sites and services that say, hey, I do that, too. And effectively, what you’re saying is that you’re going to put these same kinds of obligations on me subject, of course, the CRTC potentially saying we’re going to exempt.

Janet Yale:
Well, not potentially. I think the issue that that we really focused on was all different sizes and manners of undertakings. And that’s why we’re very explicit in our recommendations that the CRTC has to decide what classes of media content undertakings to exempt from regulation, either based on their specialty format, news, or their size of revenues. So the idea is that if it’s a small undertaking, then there’s going to be a revenue threshold below with which the commission is going to say these don’t apply to you as they do today in the traditional licensed context. So relevance for cultural policy purposes is a judgment call that the CRTC has done for years and is well equipped to do going forward. So I think that concerns that small media organizations are going to be subject to these obligations is not accurate. Having said that, we want those organizations to be able to thrive in a world where it’s harder and harder to get advertising or subscription revenues relative to the big platform providers. So it may well be in their interests to register so that they would be eligible for the financial support that’s going to come from the big platform providers. And that will be their call to make. That will be their call to make.

Michael Geist:
You mentioned like for like. And that comes up and you’ve mentioned that a lot of frankly, a lot of people in the debate talk about it. And I recognize for a lot of people. They say, well, I watched television programs on television, now I watch it on Netflix. It’s like for like. As you may know, I’ve I’ve argued that the that system and around the issue of like for like has been premised largely on broadcasters and broadcast distributors enjoying a whole range of regulatory advantages. So we had for many years for investment restrictions in terms of keeping some certain competitors out, there must carry rules that ensure that certain of your channels get included even in some of the basic packages, they’re simultaneous substitution we just endured a Super Bowl watching Canadian commercials rather the U.S. commercials. People are pretty familiar with that. And that’s worth hundreds of millions of dollars and apparently years of litigation to ensure. So I guess my question is, what are the what are the like for like advantages that Netflix has here? I know what the broadcasters and broadcast distributors have and why they pay into the system having all those advantages. What are the advantages that Netflix has that makes this a like for like situation?

Janet Yale:
Well, we start from the premise that our recommendations accept and enshrine the fact that this is an open global marketplace where people from the user perspective should have access to any content they want from wherever they want, whenever they want, on any platform of their choosing. So the advantages that these foreign streaming services have is that they benefit from operating in the Canadian market without any obligations. So what we’re saying like for like means that if you are from subscription or advertising revenues from operating in Canada, benefiting from participation in the Canadian market, then you should make an appropriate contribution to the support of Canadian content. We also recognize that for the existing broadcasters that their business models are challenged because the traditional model is under threat with the decline in subscriptions for cable companies and the loss of advertising revenues by traditional broadcasters. And we’ve acknowledged that that regulatory regime for the existing licensees should also be made more flexible. And we have some specific recommendations to give them more flexibility to adapt their business models. So we’re not getting into business models. We’re getting into like for like from a contribution to Canadian cultural policy perspective.

Sure, and certainly I recognize the idea is that everybody can the idea of the report is that everybody contributes. Obviously, my point was that the reason for those contributions for broadcasters and broadcast distributors came from what I see essentially as a regulatory quid pro quo, a series of regulatory advantages and so you pay into the system. I basically thought I heard you say that what Netflix gets is the ability is the benefit of being able to express itself in a free and democratic society. And on that basis, they ought to contribute in that. That strikes me as pretty problematic if that’s the position saying, well, you operate here, we allow you to express yourself and so you need to contribute.

Janet Yale:
I would characterize this situation quite differently. I would say that that the market, the traditional model was a closed system where you could only operate in Canada if you were Canadian owned and controlled and had a Canadian licence. And what we’re saying is that model has to be adapted were sort of between two worlds where that traditional system exists, along with a new system where through broadband connectivity, people are users are able to access. And I think it’s great that they have all these new choices from foreign streaming services that are offering them content. That’s very appealing. But and the but is that they’re generating massive amounts of subscription and advertising revenues with no contribution back. So extracting value from the Canadian market with no contribution back to cultural policy, if you believe that it’s important for there to be Canadian choices and perspectives, then like for like matters. It’s an it’s a values issue for us.

Michael Geist:
Well, I think there there might be a number of ways to achieve the cultural goals that you have without saying that you’ve got to regulate in the same way. Are there other areas that you can think of where we say the mere fact that you are operating in the market or benefiting from the market is such that you’ve now got to make this contribution into what you’re describing as a system?

Janet Yale:
As I said, it’s not a closed system anymore. It’s an open global market. And we’re embracing that and saying that it creates tremendous benefits for consumers and businesses. And so this isn’t about restricting access to content and providers. It’s about embracing it and saying that in this new open, borderless world, what is the right mechanism? What is the right way to ensure that those who benefit from operating in the Canadian market make an appropriate contribution? There are all kinds of commercial laws that apply to entities, whether or not they have a place of business in Canada. If you think about consumer protection rules and so on, this isn’t a unique proposition. What’s happened up until now is that the Internet has been outside the scope of cultural policy, and we’re saying that since most people now and more and more people are accessing their content, news and entertainment via the Internet, via the online world, let’s embrace it. But ensure that, as I say, in that world of endless choices, there are Canadian choices for people to choose from without restricting in any way freedom of expression or the ability to access whatever content people want from wherever they want it.

Janet Yale:
Ok, we’ll agree to disagree. Probably not for the first time in that part, because it seems to me no one no one is saying that that Facebook and Google aren’t subject to Canadian law, as they clearly are and they have been. The issue is, as are many other companies. The question of course, the question to me is whether or not we also layer in this mandated contribution and registration requirements for some of these kinds of companies in ways that we don’t typically do for someone merely because they happen to be selling a product or have users in Canada.

Janet Yale:
And we were very clear on what we’re not capturing. So we are not dealing with platform providers like Google, like Amazon that are not involved in the distribution of media content. So to your point, we were very conscious of the overreach issue and we focused really on what is relevant for cultural policy purposes and made a very clear distinction between news on the one hand and information on the other. And we’re very explicit that people doing search and navigation online that is not caught by our definitions and would not at all be subject to the proposed regime,.

Michael Geist:
Although the though those companies obviously still have any number of different activities that are captured.

Janet Yale:
That’s exactly the point. We differentiated by activity, not by provider. And so the activities that are relevant are the ones we’ve described. And the purpose for doing that was to recognize that business models may evolve and different actors may be involved in more than one activity, some of which are relevant for cultural policy purposes. And others that or not. And that’s totally fine. And we don’t try to restrict what business models, different organizations may want to offer today or into the future.

Michael Geist:
All of this comes at a time when there’s a lot of affordability related concerns, certainly for the Internet and otherwise. You argued, I think in your opening press conference, that the panel believes there would be no additional costs for consumers. People generally argue that where you layer in this new kind of regulation, I assume in your in an earlier lifetime, back when I worked for Telus, you probably were making those kinds of arguments around telecom regulation. But there’s that argument the consumer ultimately pays. Did you do economic analysis about what the costs would be or did you speak to different providers and say if we if we put in this kind of system, what would be the cost implications?

Janet Yale:
Let me come at that question from the perspective of of the user. One of the things that had been discussed a lot leading up to our deliberations was this idea of imposing a tax, a direct tax on the Internet to support Canadian content. And we rejected that very explicitly because we were very conscious of making sure that access to, and affordability of, broadband service means that there should be a no additional costs to consumers from whatever we proposed. We were very explicit about that. And in fact in the Telecom Act objectives, we recommend that there be right to universal affordable access to broadband connectivity wherever you live in Canada and ask the government to step up and provide it where there is no economic case for the private sector to do that. So where the private sector feels that that’s not economic for them to do? Absolutely. It’s not about passing that cost down to consumers, about the government stepping up and ensuring that everybody has broadband access. We do recognize the differentiation between carriage and content. So in terms of broadband, where there’s no economic case, the government should step in. But we also suggests that all telecommunication service providers, including Internet service providers as part of their costs of doing business, contribute to the CRTC Broadband Fund, whose purpose at $750 million is to extend broadband connectivity.

Janet Yale:
So we’ve gone, in our view, to great lengths to ensure that the costs associated with this would not be borne by consumers. So if you think of Netflix on the content side, what we’ve said is they are not we are not adding the Netflix tax. We are saying that Netflix should invest a percentage of their existing very large programming budgets in the production of Canadian content. So again, there should be no increase in costs to consumers. We have a lot of recommendations overall on issues of affordability and what to do to make sure that services are affordable to to consumers and how to address particularly disadvantaged groups in terms of the CRTC having a broader role to monitor the state of competition, address systemic barriers to competition, address issues of affordability. So we’ve gone to great lengths to ensure that this would not result in increased costs to consumers. I’ve given you a little bit of an overview of how many different places it comes up in our report.

Michael Geist:
Fair enough. I mean, surely the the fact that you decided not to move forward with an ISP tax, I think is one of most commendable aspects of the report. And there was obviously some pressure to to do that. Although, you know, given that the prime minister’s made it clear a number of occasions, that’s not something the government wanted to do. I think it’s good to see the panels, I think consistent with that. I think it’s the right decision to make as well for the reasons you’ve just articulated.

Michael Geist:
I mean, I was more focused on for any number of the media content, which includes news. where we are moving more towards fee based models and the affordability of someone being able to subscribe to multiple services or even subscribe to multiple news organizations as they move towards paywalls is an issue I think that we ought to be sensitive to. And it does strike me that if you put in all of these kinds of requirements on many of these kinds of both and be of media organizations as broadly defined as you do it, surely there is a cost involved?

Janet Yale:
Well, I think I would say two things. First of all, for the streaming services. It’s an investment requirement, not a tax. And they are spending huge budgets producing content. The problem is the content they’re producing is service productions where the key creative talent is not Canadian. So that should not result in increased costs to consumers. Period. With respect to the levees that we’ve recommended for aggregators and sharers. The thing to keep in mind is there’s a much larger base of contributors when you bring in the aggregators and sharers from the Internet. So the CRTC will have to figure out what’s the appropriate percentage that is required from a levy perspective in order to ensure, as I’ve said before, that there are Canadian choices when it comes to entertainment and that journalists are compensated for the use of their works and and whether or not that’s an appropriate thing we think compensation for journalism and news organizations that produce news is appropriate and there may be a small levy that is imposed just like there is on cable companies today to support Canadian content. But as I say, there is such a large base, the CRTC will have to determine what is the appropriate amount that is required to support these policy objectives.

Michael Geist:
I mean, yes, I understand that’s the CRTC will determine that. I guess my point is that ultimately consumers are going to pay that. There is a cost there. The suggestion that you made in the press conference that we don’t believe these costs are going to be passed on to consumers. It’s tough to do. Tough for me to see how you concluded that. That’s why I asked, well, did you do economic analysis, at least across to some players?

Janet Yale:
Well, of course, we did economic analysis based on the size of the market and what it’s likely to be. And as I say, there are publicly available information on how much money is being generated through advertising and subscription revenues in Canada, both from curators, aggregators and sharers. And we made sure that that there would be money in the system that would address the policy objectives. But of course, it you know, that’s right in the heart of the CRTC’s mandate to determine. The other thing I would note is that the costs of the CRTC, the costs of the CRTC are covered by the fees paid by the participants. And so one of the things we’ve said and recognize, of course, is that there is a need for a re-imagined role for the CRTC and the CRTC of course in order to administer this roadmap we’ve articulated, will have to have an expanded role and mandate and we expect the participants to cover those costs and those should not be passed on to consumers. They’re part of the costs of doing business in Canada.

Michael Geist:
Let me let me try to hit on a few issues quickly. There’s an emphasis on net neutrality. It came up in the government’s direction to the panel as well. And I think you took that seriously. But when I think of net neutrality, it is largely my mind about stopping self-interested intermediaries, ISPs from influencing what Internet users can access or services they use. You have any concerns that the recommendations you have could be viewed as inconsistent with some of those net neutrality principles, with the CRTC effectively acting as the intermediary when it when it gets into, for example, into the discoverability requirements, it is beginning to insert choices about what people can or see when they access services.

Janet Yale:
I would fundamentally disagree that that this has in any way interferes with the principle of net neutrality. If you read that chapter in our report, we reaffirm the commitment to a free and open Internet. And in fact, recommending that that right be safeguarded by enshrining an objective in the Telecommunications Act explicitly to safeguard open access to the Internet. So we in many places talk about how fundamental it is that users have the right via their Internet service to access any and all content from wherever they want, whenever they want. So I fundamentally believe that we have enshrined in our recommendations the right to a free and open Internet and the principle of net neutrality as is currently embodied in the Telecom Act.

Michael Geist:
And that principle which focuses on not influencing the content or meaning of communications. Your view is that putting in a discoverability requirement, let’s say, on a news aggregator saying you must include links to the sites that I’ve identified and here’s how prominent they have to be doesn’t influence the content or meaning of that content or the communication?

Janet Yale:
The CRTC is obviously going to decide what prominence, what discoverability means. I think in a world, as I’ve said, of endless choices and voices, it’s one thing to create the content. It’s another thing for people to be able to find it. We’re not telling people what to see and when to see it. What we’re saying is if you’re going to create Canadian content and news and entertainment, then people should. If they won’t be able to find it. So it’s not about restricting their choices, it’s about ensuring and with massive amounts of content that it’s findable. And I don’t believe that that’s inconsistent with the principle of net neutrality.

Michael Geist:
I mean, speaking of discoverability, it comes up a lot. The panel states that, I quote, “A majority of consumers have said they have difficulty finding content they want to watch”. I took a look at the citations for that statement. Candidly, neither of them really make the case that there is a discoverability problem for Canadian content. But it’s entirely possible that you had other evidence along those lines. I was wondering if you did.

Janet Yale:
I think, you know, our job, as I’ve said, is to create the legislative framework and regulatory roadmap. And the principle was that those who benefit from operating in the Canadian market should have both requirements to invest in Canadian content and ensure that that content is discoverable, meaning people can find it. And so how that should be done will be something that’s very much in the sweet spot of the regulator to decide. We didn’t get into the specifics of what does prominence mean, what does being able to find something mean. I think this is territory that is incredibly important for the CRTC to think about in a way that preserves, as we’ve discussed, freedom of expression and the ability to watch whatever content anybody wants from wherever they want, whenever they want. And so those requirements will depend on the nature of the service and the decisions of the CRTC.

Michael Geist:
Right. But OK, I get that. I get what you’re trying to achieve. I guess the question for me was, is there. Did you uncover a specific problem and discovering this stuff? When I go on Netflix and I search for Canada or Canadian, it provides you with a whole suite of Canadian movies and television shows.

Janet Yale:
And yet so sorry. From. From the perspective of finding Canadian content. You’re right that you have to look in the catalogue and see things that are earmarked as Canadian, but they’re not blended into the catalog of other categories of content that may be available. So is that enough that the catalog, if you say I only want Canadian irrespective of the category I can find it, that may be good enough. Is it better if there’s other ways to showcase and make prominent Canadian content? When you log in to Netflix, you know that based on your previous viewing preferences, they suggest content that may be of interest to you. Are they suggesting or promoting ones that may be Canadian? Should that be one of the choices that’s available to you to choose from, not to dictate that you watch it? Those are the kinds of questions that I think it’s appropriate for the CRTC to consider.

Michael Geist:
Sure. Well, one last time. Was there evidence that that is a problem right now? When I started watching Schitt’s Creek on Netflix, suddenly Workin’ Moms and some of the other Canadian shows that it has did start appearing as shows I might like. Perhaps the algorithm recognizing I’m starting to watch Canadian shows. If I search for Canadian shows, I get lots of options. And if I start watching lots of those, and I did this is an experiment some time ago, the algorithm started recommending it more and more. So I guess the question is, is did you have evidence that this was a problem for people finding Cancon?

Janet Yale:
Certainly we heard from producers that they feel that their content is hard to find and Netflix isn’t, as you know, the only streaming service. So in a future forward framework, we have to anticipate not just deal with the problems of today, but deal with the multitude of streaming services that are going to come and the complexity of the business models that may emerge. So discoverability is one way to ensure that people can find Canadian choices. And what those specific requirements are will be determined based on the CRTC assessing in a public hearing context, what problems individual users are having with respect to their their choices.

Michael Geist:
Two last substantive questions and then just a little bit on process. The panel calls really for a major overhaul, obviously of Canadian content production. You’ve talked about key creative personnel and the like, but you sidestepped the question of what constitutes Cancon itself. And that’s an issue that’s come up for some time. Netflix is clearly investing huge amounts of money on production in Canada, this foreign location and service based production, which is viewed by some as problematic because it increases the costs of production and it doesn’t address Cancon per say. But when you take a look at what’s being produced under the guise of. Being Cancon, frankly, much of the stuff, whether it’s in co-productions or otherwise, is indistinguishable from the foreign location service production. Not all, there’s lot there’s certainly stuff that is, you know, we would identify as Canadian, but some stuff doesn’t qualify. Some stuff that does doesn’t feel that way. Why does the panel not get into any of those issues at all?

Janet Yale:
I think it’s a great question as to where did our mandate with respect to legislative and regulatory reform begin and end, because at the end of the day, our job was legislative reform and ensuring that the legislation gave the regulator the powers and the toolkit it needed to address the issues. In the case of Cancon, it’s something that is really at the sweet spot at the heart of the CRTC is cultural policy mandate and is something that may change over time. And so we really felt it wasn’t appropriate for us to address it unless there were gaps in the legislative framework in terms of the ability of the CRTC to say what is and isn’t Canadian content. We felt there was no legislative or regulatory gap to address, but we do make it clear that service productions are different than Canadian productions, and we embrace the notion that these streaming services are spending lots of money in Canada, creating jobs, stimulating the economy. That’s fantastic. But that has nothing to do with cultural policy with respect to Canadian content. The key creative positions must be held by Canadians and the CRTC is the right place to make the determination as to what are the specific requirements for Canadian content over time.

Michael Geist:
But we recognize that when Netflix funds on an exclusive basis Trailer Park Boys series or a film in Quebec where that meets all of those requirements that you just stated, the key creative personnel are Canadian. But it is still not treated as Cancon because the producer in this case is not Canadian. I can understand why there people would look at this and say, how is this system working to achieve the goals that you just identified?

Janet Yale:
And so some of the recommendations we’ve made would enable with the registration system for those rules to be adapted to it, to allow those productions if the key creative positions are Canadian to qualify as Canadian. Some of the limitations that you’re referring to flowed from the limitations of the Broadcasting Act, and that was one of the principles behind our recommendations for reform.

Michael Geist:
So that part Cancon you can address, but not the broader parts, because outside the mandate. You can appreciate that it’s not quite a slippery slope, but it’s tough to know exactly where you land to say this is the dividing line of what you can address and not address, because clearly you get into a lot of issues that one might have said, I’m surprised the panel was sounding off on this particular issue or issuing recommendations on.

Janet Yale:
Fair enough. We made lots of choices about where to focus our attention and we felt that this one was most appropriately addressed by the CRTC.

Michael Geist:
I mean, one last of one last issue that you highlighted was the liability for sites, which is one that won’t one might say is outside the pure broadcast side where there would be liability for failure to remove third party content that causes harm. The new trade agreement between Canada, U.S. and Mexico seems to have a provision that explicitly prohibits that kind of approach. It’s drawn from U.S. law. So I’m wondering, was there trade analysis done or did you just feel that the recommendations will fall where they may and if trade law or trade obligations don’t allow the government to implement the recommendation, that’s not our issue.

Janet Yale:
Well, I think one of the reasons we didn’t get specific on what the legislative reform should be in relation to harmful content, whether of an individual or social harm perspective, was because, first of all, they go beyond the scope of the three pieces of legislation that we were reviewing. And, you know, the question of the rights and responsibilities of digital intermediaries for the accuracy of their information is a really significant question that, strictly speaking, wasn’t within our jurisdiction to recommend. But there are different models emerging globally for how to address these issues. And all we’ve done is recommend that the government consult internationally on the best approach, and that the approach should be to introduce legislation that clarifies the liability of intermediaries for harmful content as opposed to asserting that they must take down this content. We’re not saying what the outcome should be. We’re saying there needs to be legislative clarification and that those legislative provisions obviously would have to comply with international trade agreements. So it’s more about the legislative uncertainty than what the specific choices should be for legislation.

Michael Geist:
Ok, that’s a good answer. Let me close with a couple of process questions. You’ll recall that after the public submission period closed a year or so ago. The panel decided not to publish the submissions until about a year, half a year later, rather, once you published your first interim report. I launched access to information requests and there were some organizations that allowed for that information to be made available, others did not. When I saw what they put forward, I couldn’t quite understand what the objection was, but on their part, I guess I could never quite understand what the objection was on your part, though, from a panel perspective, because it certainly seemed to me as part of the description for people submitting and I should note I was one of the people that did submit and had a chance to meet with the panel. It seemed clear that that these were going to be made public and I took people by surprise. I think that there was this lengthy delay.

Janet Yale:
And we were kind of surprised by the reaction, to be honest, because these submissions were not made in confidence to us. So we said many times that if people want to publish their submissions, go ahead. It’s not we’re not saying they’re submitted in confidence. And what we wanted was time to digest the submissions and in our what we heard report make the submissions public at the same time as what we heard. That was it.

Michael Geist:
You might have been surprised people decided not to make their submissions available, but why did you not simply take the position that they’ve been submitted? It’s a public process. We’re gonna make them available.

Michael Geist:
We just wanted time to digest them. And we made it clear from the outset that when we issued our what we heard report, we would make them public. And we did coincident with the release of what we heard, that was a call we made. It wasn’t to keep them secret or confidential for a long period of time. We just wanted time to digest the submissions, but encourage those who wanted to make them public to do so right away.

Michael Geist:
One of your panel members, Hank Intven resigned midway through the process, roughly midway. I suppose it left you with no panel members west of Toronto, I believe once once Hank stepped off. What impact did the resignation have do you think, on the panel’s work, the deliberations, etc.?

Janet Yale:
Well, in terms of how people were chosen in the first place. I think you’ll have to talk to the government about that, because I wasn’t involved in the selection of panel members initially. I was pleased to be asked to chair the panel and was delighted to do that. As to who was picked and why they were picked that wasn’t my call to make. In terms of Hank’s decision to resign from the panel. the timing of that was actually a year into the process, right at the end of our consultation, long consultation process and review of the submissions and before we started our deliberations. So that was a very clear demarcation point, which meant that he was not at all involved in our deliberations and the recommendations that are contained in the report. So there was no impact, therefore, on the process of our deliberations and the final report,.

Michael Geist:
Although it did mean, of course, that an important voice as part of that process then wasn’t part of the deliberations.

Janet Yale:
But, you know, that was his choice. This was his choice to make.

Michael Geist:
Fair enough. All right. We’ll try to wrap up. You identified some some high priority short term issues. Digital sales tax would be one of them. How do you see things unfolding if you had a crystal ball over the coming year?

Janet Yale:
Well, let me start by reiterating the three recommendations that we called on for urgent relief. The first was the expedited rollout of funding for broadband expansion because of how important that is. The second was the application of HST to foreign streaming services, not a digital tax, just HST. And the third was to bring media content undertakings like Netflix into the regulatory scheme so that they would be required to invest in media content, in Canadian content. And in terms of where I think we’ll be for a year from now. I’m a bit of an optimist and I’m very encouraged by the fact that the mandate letters for both ministers made implementation of the recommendations of our report a high priority. So given the urgency of the situation, I think a year from now we’ll see some new legislation given that we say in our report it’s time to act. I’m cautiously optimistic that a year from now we’ll see some of our recommendations in legislation.

Michael Geist:
We’ll see. I mean, it’s certainly going to be, I think, an interesting debate unfold over the coming year. And you’re right, I think there are some issues the government signalled that they’re going to move on. The tax one would be a good example of that. Well you’ve been in the public eye a lot over the last few days and sometimes people applauding, sometimes people criticizing. But it’s really good of you to come in and unpack some of these issues. Thanks so much for joining me on the podcast.

Janet Yale:
It was my pleasure. I had a really good time. Thank you.

Michael Geist:
That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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