Nathalie Theberge, CRTC vice-chairperson of broadcasting, chairs a public hearing in Gatineau, Que., in September. The regulator has recently watered down its definition of a 'Canadian program.'Justin Tang/The Canadian Press
Matt Malone is an assistant professor at the University of Ottawa’s faculty of law.
It is axiomatic of Canada’s recent sovereignty discourse that we talk fiercely about standing up to the United States before we fold. Rescinding the Digital Services Tax on Big Tech just to restart trade negotiations. Removing countertariffs on USMCA-compliant goods, even while the U.S. keeps tariffs of their own. Canada bluffs. The U.S. calls. We fold.
Now the soap opera is about to play out again. This time, it will involve the Online Streaming Act, which updates Canadian broadcasting laws to cover streaming. Effectively, the climbdown started Tuesday, when the Canadian Radio-television and Telecommunications Commission (CRTC) released its regulatory policy defining the term “Canadian program” under the law. The regulator watered down the definition and talked about “increased collaboration between foreign streamers.”
The CRTC’s new policy on Canadian content followed another regulatory policy introduced in 2024, in which the CRTC held that it would require online streaming services that are not affiliated with a Canadian broadcaster and that have revenues over $25-million a year to contribute 5 per cent of those revenues to various Canadian program funds.
Big Tech proxies lobbying to the United States Trade Representative (USTR) have not been subtle about how they feel about these rules. They want them gone. As one lobby group asserts in a recent comment to the USTR on the operation of USMCA: “American companies must pay a fee that subsidizes solely Canadian domestic content, resulting in discrimination.” This violates the digital chapter of USMCA, they argue, which obligates parties to respect “non-discriminatory treatment of digital products.”
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The U.S. Chamber of Commerce, the largest lobbying group in the United States, has squarely demanded in a recent comment to the USTR a “full repeal” of the Online Streaming Act because it “could cost U.S. industry as much as $7-billion by 2030.” That number comes from the Computer and Communications Industry Association, another tech lobbying group, which also seeks a repeal of the law as well as compensation for commercial harms it has caused.
The Business Roundtable, a lobbying group of American CEOs, has asked the USTR “to urge Canada, consistent with its USMCA obligations, to withdraw or amend the Online Streaming Act to end the discrimination against U.S. streaming services and content creators.” The International Intellectual Property Alliance also notes the law is “clearly inconsistent with Canada’s USMCA obligations.”
It is obvious where this is going. Careful lobbying by American companies – some of which have market valuations far larger than Canada’s GDP and that already reach deeply into Canadian governments, civil society and academia – have laid the groundwork to pressure us into caving. And just as happened in the past, we are not going to be able to endure much pain before we fold to their demands.
The takeaway from these episodes is that, when it comes to technology governance, Canada seems incapable of recognizing that not standing up to a bully only emboldens them further. After we caved on the Digital Services Tax this past June – in return for essentially nothing – the Computer and Communications Industry Association’s recent submission to the USTR advocated that there should also be “an explicit prohibition of such measures as a way to future-proof USMCA.”
With these laws dismantled, that will leave only the Online News Act from the Trudeau-era Digital Charter in place. That act mandated that Alphabet and Meta compensate news outlets. Big Tech is coming for that, too. The Computer and Communications Industry Association has urged the USTR to use trade negotiations “to obtain a commitment from Canada to repeal the Online News Act or at least “obtain a commitment from Canada that U.S. companies will not be designated under this measure,” effectively rendering it useless. (Interestingly, Ottawa-based Shopify is one of the companies making this call).
Rather than perform this tired and humiliating ritual once again, we should engage in a proper reckoning by developing real in-house expertise to regulate Big Tech. Adopting some measures like those several of us proposed in a September letter to Prime Minister Mark Carney about Canada’s digital sovereignty, such as reviving expert councils, launching proper public consultations, and fixing loopholes in transparency and accountability would do much to help.
Instead, Mr. Carney has perpetuated the Harper and Trudeau governments’ legacy of simply betraying promises to update the Access to Information Act and ignoring the statutory obligation to review the Lobbying Act. He seems to have learned quickly that the best way to delude Canadians into believing there is a positive outlook to this state of affairs is simply to leave us in the dark.
The Americans know it all too well.