(By Patrick Carroll, FEE) The regulatory body that oversees broadcasting in Canada has opened a public consultation about potentially banning Fox News from cable TV. Initiated on May 3, the process was prompted by the LGBTQ advocacy group Egale Canada, which asked for the consultation in early April in response to a Tucker Carlson segment that, in their view, “aimed to provoke hatred and violence against 2SLGBTQI communities.”
“This programming is in clear violation of Canadian broadcasting standards and has no place on Canadian broadcasting networks,” wrote Executive Director Helen Kennedy in an open letter. “Egale has experienced firsthand the hate that is generated from a single segment aired on Fox News in Canada. We cannot begin to imagine the broader impacts and potential rise in hate that might result from allowing more content like this to air in Canada.”
The body conducting the public consultation is the Canadian Radio-television and Telecommunications Commission, essentially Canada’s version of the Federal Communications Commision. Among other things, the CRTC is responsible for enforcing the Broadcasting Act, which governs broadcasting in Canada.
“The CRTC maintains a list of international channels cable, satellite and IPTV providers can include in their packages,” the National Post explains. And the list does change every now and then. “In March 2022,” the Post writes, “the CRTC removed Russia Today and RT France from the list, following Russia’s invasion of Ukraine.”
Fox News was originally approved for Canadian viewers in 2004 and has been available in Canada ever since.
You Got a License for That?
The specific regulation Egale Canada is accusing Fox News of breaking is section 5(b) of the Television Broadcasting Regulations which prohibits broadcasts of “any abusive comment or abusive pictorial representation that, when taken in context, tends to or is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability.”
Prohibiting what amounts to hate speech on public television may sound somewhat reasonable, but it opens the door for considerable censorship, as this story illustrates. After all, who gets to define hate speech?
Now, we could quibble about this specific regulation and how it should be interpreted or whether it should even exist, but there’s a much bigger issue to highlight, namely, the issue of broadcasting regulations as such.
For context, radio and television broadcasters in Canada are heavily regulated, much more than most people realize.
For one, foreign ownership of broadcasters is significantly restricted. As University of Ottawa law professor Dr. Michael Geist notes, “The foreign ownership rules generally limit [broadcast] licensees to 20 percent foreign ownership (up to 33 percent for a holding company). This covers all types of broadcasters including television, radio, and broadcast distributors.”
There are also strict rules about the amount of Canadian content—often called CanCon—that broadcasters must feature. The Canadian YouTuber J.J. McCullough draws attention to these requirements in an article for the Washington Post. “It is thanks to the CRTC, for instance, that Canadian radio stations ‘must ensure that at least 35% of the Popular Music they broadcast each week is Canadian content,’” he writes, “and that Canadian television stations must ‘devote not less than 50 per cent of the evening broadcast period to the broadcasting of Canadian programs.’”
As you can imagine, there is a complex list of rules that specify exactly what is required for media to be considered “Canadian Content.” Many of the personnel involved must be Canadians, for instance, and at least 75% of program and post-production expenses must pay for services from Canadians or Canadian companies.
Notably, it was these CanCon requirements that prompted much of the backlash against the recently passed Bill C-11, also known as the Online Streaming Act, which essentially aims at expanding these kinds of requirements to online platforms such as Netflix and YouTube. The legislation, originally called Bill C-10, has become quite contentious in Canada over the past few years because of the new powers it gives the government to regulate online content platforms.
Now, some proponents of Bill C-11 point out that the current system is rigged against legacy media and in favor of online content creators, and that Bill C-11 will level the playing field. I agree the current system is unfair in this regard. But the way to fix that is to deregulate legacy media, not to impose the same restrictions they face on new media.
Plain Old Protectionism
Deregulating the broadcasting industry may sound radical, but it’s actually the status quo that should be cause for concern. Though they are rarely labeled as such, the current broadcasting regulations in Canada essentially amount to a form of protectionism. Steven Globerman comments on these regulations in a refreshingly candid 2014 study published by the Fraser Institute.
“One of the longest standing shibboleths of Canadian public policy is that popular culture industries in Canada must be financially supported and protected by government if those industries are to survive,” he writes. “While it is certainly incorrect to characterize all culture policy as protectionist, Canadian content regulations and foreign ownership limitations can be fairly characterized as such.”
The truth that is rarely spoken is that there’s a whole “Canadian Content” industry being propped up by these regulations, and it stands to lose a lot if the quotas and other protections were to disappear.
A group called SOCAN, which lobbies on behalf of Canadian musicians, eagerly boasts about the success of these regulations.
“In 1971, the Government of Canada recognized a problem: Canadian music wasn’t being played on Canadian radio, but foreign artists (mostly American) were. This meant that non-Canadian artists received the vast majority of radio airtime. Money flowed from Canada to support foreign talent rather than our Canadian talent.
As a result, Canadian Content (‘CanCon’) rules were implemented for radio stations. The CanCon rules require that at least 35 percent of music broadcast by radio stations during peak hours must meet a defined minimum level of ‘Canadian.’ In Québec, the level increases to up to 65 percent for French-language radio stations. The rest of the ‘traditional’ sector (television and cable) also has its own CanCon rules.
Those rules have been enormously successful in ensuring that Canada has its own cultural industry and Canadian voices, creating, sustaining, and building a significant source of monetary, emotional and cultural value. There are few, if any, aspects of Canadian culture that foster as much national pride and value as the success of music made in Canada.
Today, we’re facing a similar but new challenge: Canadian music isn’t sufficiently prominent on internet-based services.”
They go on to advocate for Bill C-10 (the precursor of Bill C-11) to “bring the Broadcasting Act into the digital era” because “it’s imperative to continue to sustain and build Canadian-made music.”
If this reminds you at all of the whole “Made in America” rhetoric, then you understand this issue perfectly. And if the emphasis on “preserving Canadian cultural identity” strikes you as a Baptist cover for a Bootlegger motive, then you’re really paying attention.
Why does this group favor the existing regulations and their expansion with Bill C-11? Because they represent the beneficiaries, the creators of “Canadian Content” who are given a competitive edge against their foreign counterparts with these quotas. An industry that owes much of its existence to a certain set of regulations tends to push pretty hard to keep those regulations. And if they can gain even more quotas in the increasingly dominant new media, all the better.
Toward a Free Market in Broadcasting
Should broadcasting regulations be scrapped then? Absolutely. Not only is broadcaster licensing protectionist, it’s also censorious, because it gives the government the power to control who is allowed to broadcast. The economist and political theorist Murray Rothbard discusses this in his book For a New Liberty.
“Because every station and every broadcaster must always look over its shoulder at the FCC, free expression in broadcasting is a sham. Is it any wonder that television opinion, when it is expressed at all on controversial issues, tends to be blandly in favor of the ‘Establishment’?”
Just imagine if the government tried to create licensing for books or newspapers, Rothbard says. “What we would all consider intolerable and totalitarian for the press and the book publishers is taken for granted in a medium which is now the most popular vehicle for expression and education: radio and television. Yet the principles in both cases are exactly the same.”
So what would a free market in broadcasting look like? Fortunately, we don’t have to guess. It would look like the internet, which the CRTC has thus far not been regulating (hence the push for Bill C-11). In other words, it would look like more choice and by-and-large better content.
Now, some might object to a free market in broadcasting because certain producers of “Canadian Content” would go under as a result. This is probably true, but success in content creation should depend on your ability to win viewers, not on your ability to rig the system in your favor.
Others may object because they believe patriotism and a national identity is important to foster. But it’s not the government’s place to foster culture. If the Chinese government imposed “Chinese Content” requirements for their broadcasters and had state-approved content creators to fill these quotas, wouldn’t that be considered an unwarranted interference with press freedom? Why should it be considered any less egregious when we do it?
Still others may object because of concerns about hate speech, such as with the Fox News case. But hate speech laws already exist in the Criminal Code. Now, whether those laws are themselves legitimate is another matter. For the purposes of this discussion the point is that specific hate speech regulations on broadcasters are at best redundant with existing laws and at worst censorious. In either case they shouldn’t exist.
A final objection that might be raised is that without regulation, Canadians would be allowed to watch foreign propaganda like Russia Today. And it’s true, RT would probably be on cable TV in a free market. But there’s a couple of points to make in response. First, it should be up to consumers to decide what constitutes state propaganda, not bureaucrats. And second, if your concern is genuinely that Canadians might be allowed to watch RT on TV, I would simply point out the irony that you are advocating for government censorship in the name of opposing authoritarianism.
Speaking of irony, it’s curious that Canadian politicians love to posture on the world stage about their commitment to freedom. If they actually want to practice freedom and not just pay lip service to it, the complete deregulation of broadcasting would be a great place to start.
