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Canada’s Online Streaming Act Needs a Privacy Clause

Today, consuming media involves users being watched and tracked in ways the audience measurement industries of old could only have dreamed of.

PHOTO: A journalist stands in front of a smart TV screen displaying an eye at the IFA trade show for consumer electronics in Berlin, Germany, September 4, 2019. (REUTERS/Hannibal Hanschke)
Vizio is one of the bestselling TV brands in the United States. Yet selling data about users and their watching habits is one of its core businesses.

A television manufacturer that becomes a big data business is no anomaly. Today, consuming media involves users being watched and tracked in ways the audience measurement industries of old could only have dreamed of. With debate closing on Bill C-11, the Online Streaming Act, there is one major amendment not on the table. Viewers need better data and privacy rights.

The Online Streaming Act

The Online Streaming Act — “an act to amend the Broadcasting Act and to make related and consequential amendments to other Acts” — sets out to enrol the screen and sound sectors in renewed support for homegrown industrial cultural products like television shows and music albums. Just how those sectors should pledge support, and which industrial cultural products they should boost and how, remains nebulous. Unclear too is how to distinguish these industrial cultural products from the many other forms of expression online, among them “user-generated content” — a term the Online Streaming Act doesn’t even broach, preferring to focus on social media “uploads” that generate revenues.

It will fall to Canada’s broadcasting and telecommunications regulator the CRTC (Canadian Radio-television and Telecommunications Commission) to develop the proposals, hold the public hearings, and issue reasoned, and appealable, decisions that chart these turbulent waters. But the CRTC will be remiss if it does not, and is not directed to, focus on gatekeeping power.

Traditionally, programs made their ways to Canadian audiences via domestic players: some independent, but a growing number vertically integrated (for example, Bell, Rogers and Videotron). That sector has now widened to include international distributors whose scale economies are geographic rather than vertical (such as Disney, Netflix and DAZN).

Seeing foreign distributors take significant domestic market share is but a surface change. Beneath the waterline, it is the proliferation of Android sticks, reconfiguring of cable tuners as set-top boxes, and ongoing push to disappear these technologies into your smart-ified, connected TV itself that matter.

The future of cable television might be online, but it is mediated through smart, watchful code stewarded by just a handful of players. Telus and Rogers are two of those who now bundle streaming services on to one device.

Seeing foreign distributors take significant domestic market share is but a surface change. Beneath the waterline, it is the proliferation of Android sticks, reconfiguring of cable tuners as set-top boxes, and ongoing push to disappear these technologies into your smart-ified, connected TV itself that matter.

The Data Question

Do these players influence how we consume content by giving more prominence to some content over others?

The power and process of discoverability is a concern that the Online Streaming Act, clumsily, aspires to see the CRTC answer. But underneath are more fundamental questions about distributors becoming big-data intermediaries. Does their data advantage give them market power over independent content creators that these distributors stage-manage — whether manually, algorithmically or both — onto audience screens? What privacy rights should be involved in all that data processing, anyway?

These debates aren’t new. In the part of the industry regulated by the CRTC, they’ve been happening since debates between distributor-owned channels and the few remaining independents came to a head in a 2015 order to form a long-running industry working group in which the Office of the Privacy Commissioner participated, too.

Like many of media content delivery’s minutiae, the “return path data” that TV set-top boxes, smart televisions and apps collect and fuse remains a mystery to most Canadians but an active subject at the CRTC. Love, hate or beg to fix the CRTC, if the goal is to refresh its operating principles for a digital media universe, then safeguarding data rights within that quirky and specialized universe is ground zero.

At their worst, unregulated media intermediaries’ data practices risk creating a tilted playing field that makes a mess of Canadians’ privacy rights. Modern “broadcast” regulation must mean rules and standards that prevent those outcomes.

Data Rights Now

An easy fix, although hardly a cure-all, is to add a data rights and privacy clause to the Online Streaming Act. We don’t have to look far for drafting ideas. The Telecommunications Act already makes it a policy objective to “contribute to the protection of the privacy of persons.”

The Online Streaming Act operates in a different context. But we propose adding the following to its policy objectives: “contribute to the protection of the privacy of persons and recognize the public and cultural significance of information about them.”

A couple of other amendments would be required to make the policy objective stick. The CRTC should have the ability to make regulations furthering that objective among both broadcasters and what the Broadcasting Act calls “broadcasting receiving apparatus,” like televisions and set-top boxes. It should have to run it by Canada’s competition and privacy commissioners en route to consulting on those regulations. But the key is to embed privacy, with all of the public and cultural implications data rights take on in the broadcasting context, into the heart of how the CRTC pursues its new mandates.

The Online Streaming Act still stubbornly refers to audiovisual media distribution as “broadcasting.” Whatever you call it, though, it now involves data and privacy. The Online Streaming Act should, too.

This article was cross-posted on

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.

Bram Abramson practises law and public policy as principal with 32M, a regulated technologies advisory firm.

Fenwick Mckelvey is an associate professor at Concordia University and the author of Internet Daemons.


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