Two regulatory streams of thought
As ACMA’s position paper emphasised, most Australians are now consuming video content online. With this major shift has come attempts to bestow streaming services with some of the same responsibilities borne by traditional broadcasters. We’ve seen this through Australia’s proposed Streaming Services and Investment Scheme, and in Canada with the proposed implementation of the Online Streaming Act (Bill C-11) to amend the Broadcasting Act 1991. Despite sharing a common objective of promoting local content on streaming services, these proposals comprise contrasting solutions.
Australia’s proposal opts for a two-tiered investment scheme. Tier 1 services must report to ACMA annually on their investment and discoverability efforts relating to Australian content. A failure to invest more than 5% of their gross revenue on Australian content poses the risk of designation as a Tier 2 service by the Minister for Communications, where formal investment obligations would be imposed.
By contrast, Canada is seeking to bring SVOD providers under the regulatory purview of their independent regulator, the Canadian Radio-television and Telecommunications Commission, or CRTC, with an approach that isn’t reliant on ministerial discretion. While regulations formulated by the CRTC may be contested and forwarded to the Minister who may issue a directive, the CRTC retains the ultimate authority to prescribe content quotas, programming, expenditure and discoverability requirements, and enforce monetary penalties.
Canada has also opted to achieve this change through proposed legislative reform that will insert the new class of an ‘online undertaking’ into the definition of a ‘broadcasting undertaking’ under their Broadcasting Act. This term captures more than the Australian scheme, whose stated focus is on large SVOD providers (although the definition of an SVOD provider is yet to be clarified). Most commercial audio-visual content online will be covered, including services such as Spotify and Audible.
Some have even suggested that this definition is so broad it could encompass user-generated content. Despite CRTC chair Ian Scott stating he has 'no interest' in regulating user-generated content, s 4.2(2) of the bill enables social media content to be considered an ‘online undertaking’ if, for example, the program uploaded indirectly or directly generates revenue. The regulatory reach of the bill has raised questions of whether it might curtail freedom of expression. Arguably, this is addressed by assurances in the bill that the interpretation and any regulations made under the Act will be consistent with freedom of expression – a guarantee largely absent from Australia’s broader legal framework.
From a social perspective, Bill C-11 has also sought to take a more intersectional approach to the objective of promoting local content. The need to represent different diverse social identities and ethnocultural backgrounds has been added into the declaration for Broadcasting Policy in Canada contained within s 3 of the proposed Act, and the CRTC is given the authority to impose conditions in line with this policy upon online undertakings. This issue of media representation is untouched by the Australian investment scheme.
Both these novel schemes are still in the works. We will have to wait until they are enacted to see whether a commercially-driven investment scheme will be more viable than broader legislative reform with an online environment that has, until recently, remained largely untouched by broadcasting regulation.
Vidya Kathirgamalingam
CMT Research Assistant
This article features in our 8 July newsletter - about the prominence issue for public broadcasters on streaming services, misinformation circulating about the PNG election & more. Click to read the full edition. If you want to receive this newsletter direct to your inbox, subscribe here.
