French-language content law could affect Quebecers’ access to Spotify, Netflix: industry groups

This Sunday, Jan. 28, 2018, photo shows music streaming apps clockwise from top left, Apple, Spotify, Amazon, Pandora and Google on an iPhone in New York. (AP Photo/Jenny Kane, File) (Jenny Kane)

Quebec has passed a new law that will impose minimum French-language content rules on digital platforms like Spotify and Netflix, but already industry groups are expressing concern, and some experts say it could even be unconstitutional.

Passed unanimously in the Quebec legislature on Thursday, Bill 109 gives the government the power to set the amount or proportion of French-language content that major digital platforms will be required to offer.

The minimum thresholds are expected to be set within 18 months, but already, Spotify doesn’t like what it’s hearing.

When reached for comment on Friday, the streaming giant referred CTV News to a statement released Thursday by the Digital Media Association (DIMA), which represents the world’s leading music streaming services such as Spotify and Apple Music.

“As Bill 109 advances, DIMA remains concerned that new regulatory uncertainty could disrupt the stability that music services need to continue delivering the choice, access, and affordability that Quebecers currently enjoy,” the trade association said in a statement on Thursday.

It pointed to a Léger survey conducted in October that found that 66 per cent of Quebecers believe the government should not influence which music is available on streaming services and that 61 per cent said French-language music is already easy to find on streaming services.

“DIMA members are committed to preserving Quebec culture and giving Quebecers what they want. However, we are concerned that Bill 109 is unclear and risks derailing the progress we’ve made to deliver Quebecers choice, access, and affordable listening,” the association added.

Law puts Quebecers’ access to content at risk: group representing Netflix

The Canadian affiliate of the Motion Picture Association, which speaks on behalf of Netflix, also expressed unease with Bill 109.

“Today, global streaming services offer Quebec audiences unprecedented variety—from French-language content across every genre to specialized services that meet their unique interests and preferences. Bill 109 creates regulatory challenges and uncertainty that will put at risk the choice and access to content and services that Quebecers currently enjoy," the Motion Picture Association – Canada said Thursday.

“As this process moves forward, we encourage the government to address the concerns raised in our submission to minimize unintended consequences to user choice and selection for Quebec consumers.”

The law, whose official title is An Act to affirm the cultural sovereignty of Québec and to enact the Act respecting the discoverability of French-language cultural content in the digital environment, enshrines the right to discoverability and access to French-language cultural content. Quebec’s Minister of Culture, Mathieu Lacombe, has said that young people have difficulty finding French-language content on digital platforms, and pointed to the fact that of the 10,000 most-streamed songs in Quebec in 2023, only 8.5 per cent were French.

Constitutional challenge?

Allen Mendelsohn, a lawyer specializing in internet law and lecturer at McGill University, said while the government’s goal with the new law is applaudable, there are too many variables right now in its current form to be able to determine whether it will be effective and how the platforms will respond.

He does fear, however, that if the regulatory scheme becomes too onerous on streamers “they have, you know, two options, one of which is raising prices. So that’s certainly possible.”

He also says the law’s constitutionality is very questionable. While Quebec maintains that it is trying to regulate culture, which is in its purview, industry groups could argue that the province is, through this law, regulating the internet, which is a federal matter.

“That is a fact of law that has been determined by the courts numerous times, that regulation of the internet is a federal matter. Period,” Mendelsohn said, referring to the Quebec Court of Appeal decision that struck down a Quebec law that required internet service providers (ISPs) to block illegal gambling sites because it was outside of the province’s jurisdiction.

“The Quebec Court of Appeal itself said, No, Quebec government, you can’t do that. That’s a federal matter. So, it’s well established law that regulation of telecommunications is a federal matter. The Quebec government argues that this is not regulation of telecommunications, it’s regulation of culture, which can be a provincial matter, but a court is going to have to sort that out,” he added.

Mendelsohn isn’t the only legal expert who has raised alarms about the law.

Michael Geist, the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa’s faculty of law, called it “is unconstitutional, unnecessary, and unworkable.”

“If enacted into law, it is sure to face a constitutional challenge and the prospect that streaming services such as Netflix and Spotify will either block the Quebec market or be forced to remove considerable English and foreign language content in order to comply,” Geist wrote in a blog post on Dec. 5. “The result will mean less choice for Quebec-based subscribers without any requirements for more Quebec content (the law applies to French language content, not Quebec-based content).”

Quebec’s culture minister said that the framework of Bill 109 is “flexible” and can “adapt over time,” so it remains to be seen how the streaming giants will cooperate with the new regulations.

The law also provides for the creation of a Discoverability Bureau within the Culture Department to oversee enforcement of the law, regulations and agreements. It will also publish a report every three years.

With files from The Canadian Press