From the MacDonald-Laurier Institute

This article originally appeared in the Hub.

By Peter Menzies, October 4, 2023

It’s clear the regulator is about to draw podcasts into its warm embrace.

The CRTC has backtracked on its promise to leave podcasts alone.

On May 12, the federal regulator stated in its “Myths and Facts” release that concerns it would regulate content such as podcasts were a “myth” and the “fact” of the matter was that “a person who creates audio or video content or creates a podcast, is not a broadcaster under” the Online Streaming Act (Bill C-11).

That “fact” didn’t live long. It expired September 29 when, in its first decisions since being granted authority over the internet, the CRTC changed lanes.

While it was careful to state that podcasters themselves don’t have to register with the Commission, the web-based platforms that make podcasts available must do so. Indeed, podcasters may not be broadcasters, but very much as predicted by the legislation’s critics, the CRTC has found ways to bring them into scope anyway.

It decided that podcasts constitute “programs under the Broadcasting Act, given that they are comprised of sounds intended to inform, enlighten or entertain.”

The regulator’s decision further explains that while podcasters may not be broadcasters, the transmission of podcasts over the internet most definitely “constitutes broadcasting” which makes those entities that platform podcasts into cable companies.

So while the CRTC concedes that while “the Broadcasting Act does not give the Commission a mandate to regulate creators of programs” it nevertheless makes clear that its powers do cover “those services that are involved in the broadcasting of programs, which are referred to as broadcasting undertakings.”

Is your head spinning yet?

The legal contortions continue throughout the decision, but the clear takeaway, the bottom line, is that, while it keeps insisting it doesn’t intend to regulate the content of podcasts, it is very concerned about the content of podcasts and if it can’t legally regulate them, it’ll make sure someone else does it for them.

Paragraph 223 of its decision makes it clear the CRTC is about to draw podcasts into its warm embrace.

Without information about online undertakings that transmit or retransmit podcasts, it would be more difficult for the Commission to ensure the achievement of the objectives of … the Broadcasting Act, which relate to, among other things, providing a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern, and (that) the programming provided by the Canadian broadcasting system should be varied and comprehensive, providing a balance of information, enlightenment and entertainment for people of all ages, interests and tastes.

In other words, what the CRTC denounced as “myth” in the spring has become a “fact” in the fall. It has kicked open the door to the regulation of online content, if not directly then by proxy through the platforms that deliver the work of podcasters to their audiences.

It is a bureaucratic master stroke.

Here’s what will follow.

The list of intervenors presenting at the CRTC’s public hearing coming up in late November indicates the panel of commissioners will hear from a number of groups that will explain the extent to which they are under-represented and funded. So, a possible outcome of this will be that services that carry podcasts will have to fund podcasters who, on their own, haven’t been able to find an audience.

Just as likely is that platforms will be regulated to ensure podcasts designated by the CRTC are given priority visibility/discoverability online over undesignated podcasts through the manipulation of algorithms. These are likely to be podcasts by Indigenous, BIPOC and LGBTQ2S creators.

As erstwhile CRTC Chair Ian Scott told the Senate committee studying Bill C-11 in 2022:

Instead of saying, and the Act precludes this, we will make changes to your algorithms as many European countries are contemplating doing, instead, we will say this is the outcome we want. We want Canadians to find Canadian music. How best to do it? How will you do it? I don’t want to manipulate your algorithm. I want you to manipulate it to produce a particular outcome. And then we will have hearings to decide what are the best ways and explore it.

This was reinforced in an exchange Scott had with Senator Pamela Wallin, who suggested proponents of the bill were parsing their words and that:

You won’t manipulate the algorithms; you will make the platforms do it. That is regulation by another name. You’re regulating either directly and explicitly or indirectly, but you are regulating content.

To which Mr. Scott replied: “you’re right.”

The CRTC has now confirmed what it denied mere months ago when it was parroting then-Heritage Minister Pablo Rodriguez’s talking points.

It will make sure podcasts and any other internet content it can capture is regulated.

Peter Menzies is a Senior Fellow with the Macdonald-Laurier Institute, a former newspaper executive, and past vice chair of the CRTC.