Canadian Broadcasting Corporation (Re), 2025 OIC 44
Date: 2025-08-20
OIC file number: 5823-04722
Access request number: A-2023-00126
Summary
The complainant alleged that the Canadian Broadcasting Corporation (CBC) had improperly withheld information under section 68.1 (journalistic, creative or programming activities of the Canadian Broadcasting Corporation) and paragraph 18(b) (competitive position of government institutions, negotiations by government institutions)
of the Access to Information Act in response to an access request. The request was for the number of paid subscribers to Gem. This allegation falls under paragraph 30(1)(a) of the Act.
The Information Commissioner found that the number of paid subscribers to CBC Gem, even if it is related to CBC’s programming activities, also relates to its general administration. This means the exception to the exclusion is engaged. The Commissioner concluded that the information does not meet the requirements of section 68.1.
The Commissioner also found that, while CBC did identify possible harms to its competitive position or to ongoing negotiations, it did not demonstrate that there was a reasonable expectation that these harms could occur, well beyond a mere possibility. The Commissioner concluded that the information does not meet the requirements of paragraph 18(b).
The Commissioner ordered CBC to disclose the withheld information.
CBC gave notice to the Commissioner that it would not be implementing the order.
The complaint is well founded.
Complaint
[1] The complainant alleged that the Canadian Broadcasting Corporation (CBC) had improperly withheld information under the following provisions of the Access to Information Act in response to an access request:
- section 68.1 (journalistic, creative or programming activities of the Canadian Broadcasting Corporation); and
- paragraph 18(b) (competitive position of government institutions, negotiations by government institutions).
[2] The allegation falls under paragraph 30(1)(a) of the Act.
[3] The access request was for the number of paid subscribers to Gem.
Investigation
[4] When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.
Section 68.1: journalistic, creative or programming activities of the CBC
[5] Under section 68.1, the right to access records under Part 1 of the Access to Information Act does not apply to information controlled by the CBC that relates to its journalistic, creative or programming activities.
[6] However, the exclusion does not apply to information under the CBC’s control that relates to its general administration, including information related to travel, lodging and hospitality expenses (as per section 3.1).
Does the information meet the requirements of the exclusion?
[7] CBC applied section 68.1 concurrently with paragraph 18(b) to withhold the number of paid subscribers to Gem, CBC’s digital video streaming service.
Does the information relate to CBC’s journalistic, creative or programming activities?
[8] CBC explained that its paid Gem service exists only to transmit programs to its audience. CBC cited section 46(1)(c) of the Broadcasting Act to state that such transmission is a power granted to CBC "for the purpose of providing…programming". CBC concluded that as a result, there could not be any serious debate as to whether that service constitutes a "programming activity”.
[9] CBC added that there is a correlation between the subscriber numbers to CBC Gem and its programming activities. CBC stated that these numbers are a factor, among others like focus groups, audience ratings, internal review, research, mandate, etc., used to determine its programming offerings. These numbers constitute a way to measure the interest of CBC’s audiences and to determine what type of programming should be offered. For example, if the number of subscribers increased following the introduction of a new program, CBC would infer this is the type of program offering audiences enjoy.
[10] CBC also argued that section 68.1 applies to any information that "relates to" CBC's programming activities, irrespective of whether its disclosure would be harmful, or whether the information does or does not reveal anything about the editorial or decision-making process.
[11] CBC argued that the phrase “relates to” requires only some connection between the information at issue and CBC’s programming activities. According to CBC, it therefore seems obvious that the numbers that reflect the degree of success of particular distribution platforms such as Gem (as measured by the number of people willing to pay for it) "relates to" programming; it believes that is all that is needed for the exclusion to apply.
[12] Finally, CBC explained that the information at issue influences CBC's programming choices, as the number of paid subscribers on the ad-free Gem service is a direct indicator of the tolerance Canadians have for advertising on CBC's free service. CBC added that if increased advertising on the free service results in a subsequent increase of paid subscribers on the ad-free service, it is an indication that the market has reached or exceeded that tolerance threshold. CBC therefore submitted that the number of paid subscribers is indeed related to programming as it speaks directly to programming decisions that it makes regarding its free service (in this case, the number of advertising minutes per program).
[13] In light of the above, I am satisfied that the information at issue relates to CBC’s programming activities. That being said, if the information at issue also relates to CBC’s general administration, then this information meets the requirements of the exception to the exclusion under section 68.1.
Does the information relate to CBC’s general administration?
[14] According to CBC, the scope of section 68.1 is informed by section 46(5) of the Broadcasting Act which reaffirms CBC's creative independence: "The Corporation shall, in the pursuit of its objects and in the exercise of its powers, enjoy freedom of expression and journalistic, creative and programming independence". CBC stated that it is designed to create a balance between CBC's role as a market participant in the broadcasting sector and its status as a Crown corporation subject to public scrutiny. The exclusion ensures that information that relates to CBC’s programming is not made available to its competitors unfairly, while the exception allows for the scrutiny of the CBC's overall operations by the public.
[15] CBC explained that this balance is reinforced when one reads the section as a whole: "general administration" is a counterpoint to "journalistic, creative or programming activities". CBC concluded on this point that the question to be answered is whether the information at issue is connected to CBC's programming activities, or whether it is connected to its general administration as a whole.
[16] I disagree with CBC’s interpretation of section 68.1 and the exception to this exclusion. I note that “general administration” and “journalistic, creative or programming activities” are not mutually exclusive. If the information relates both to programming activities and CBC’s general administration, the exclusion does not apply. It is not a weighing exercise to determine whether the information relates more to one than the other. Rather, in order for section 68.1 to apply, there must be no overlap – that is, that the journalistic, creative or programming information does not also relate to the general administration.
[17] The complainant argued that, since the expression “general administration” is not further defined in the Access to Information Act, it takes its ordinary meaning, and this includes information related to financial activities and management activities, including strategic planning. The complainant added that the number of paid subscribers directly relates to the business and operational aspects of the service rather than the content and scheduling of programs, because administration involves managing finances, customer relationships and operational logistics, including subscriber acquisition and billing. According to the complainant, these aspects are crucial for the financial health and growth of the service but are separate from the creative and editorial decisions involved in producing and scheduling television programming.
[18] CBC argued that this analysis acknowledges that the information relates to CBC's programming output, and not to its general operations, as the complainant stated that the number of paid subscribers directly relates to the business and operational aspects of “the service”. For CBC, it was therefore clear that the information requested relates to the programming activity (i.e., "the service" in the terms of the complainant’s statement), and not to the general administration of CBC overall.
[19] However, I do not share CBC’s view that the information at issue relates only to programming activities and not to its general administration. While CBC explained how the information at issue could influence the programming offered by CBC Gem, it remains that the number of paid subscriptions also relates both to CBC’s financial activities and to its management activities as a direct indicator of the performance of the platform.
[20] CBC, in its representations regarding its concurrent application of paragraph 18(b) on the information at issue, explained that the release of the information is likely to harm its competitive and financial position, which would seem to imply there is a connection between the information at issue and CBC’s financial activities.
[21] The Access to Information Manual published by the Treasury Board Secretariat (TBS) states in section 13.2 that:
Since the expression “general administration” is not further defined in the Act, it takes its ordinary meaning: the management functions and expenditures associated with administering an organization. Therefore, information that relates to the general administration of the CBC and its wholly owned subsidiaries includes information related to financial activities, human resources, training and development, information management and technology, management activities (including strategic planning and performance management, audits and evaluations), management of assets, security, and any information related to the management of the institution.
[22] Furthermore, there is a difference between the French and English versions of the Act with respect to general administration under section 68.1. The French version says only “administration”, which appears indicative of a broader interpretation of what falls within the exception.
[23] Since a key principle found in the stated purpose of Part 1 of the Act is that “necessary exceptions to the right of access should be limited and specific”, it follows that where an exception to access in the Act is capable of two different meanings, the narrower meaning is the one intended by Parliament (see Rubin v. Canada (Minister of Transport) (C.A.), [1998] 2 FC 430: “all exemptions to access must be limited and specific. This means that where there are two interpretations open to the Court, it must, given Parliament’s stated intention, choose the one that infringes on the public’s right to access the least”.)
[24] I am therefore of the view that the number of paid subscribers to CBC Gem, even if it is related to CBC’s programming activities, also relates to its general administration. This means the exception to the exclusion is engaged. I conclude that the information does not meet the requirements of section 68.1.
[25] Since the information does not meet the requirements of section 68.1, I also examined whether CBC had properly applied paragraph 18(b) to the same information.
Paragraph 18(b): competitive position of government institutions, negotiations by government institutions
[26] Paragraph 18(b) allows institutions to refuse to disclose information that, if disclosed, could reasonably be expected to harm the competitive position or interfere with contractual or other negotiations of a government institution.
[27] To claim this exemption with regard to competitive position, institutions must show the following:
- Disclosing the information could injure the competitive position of a government institution.
- There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.
[28] To claim this exemption with regard to contractual or other negotiations, institutions must show the following:
- Contractual or other negotiations are under way or will be conducted in the future.
- Disclosing the information could interfere with the negotiations.
- There is a reasonable expectation that this harm could occur—that is, the expectation is well beyond a mere possibility.
[29] When these requirements are met, institutions must then reasonably exercise their discretion to decide whether to disclose the information.
Does the information meet the requirements of the exemption?
[30] CBC applied paragraph 18(b) concurrently with section 68.1 to withhold the number of paid subscribers to CBC Gem.
[31] CBC explained that it competes with other streaming services and platforms. CBC added that releasing the information at issue would harm its competitive position by providing sensitive data to these competitors, allowing them to use it to be more aggressive in their attempts to lure paid subscribers from the Gem platform to theirs.
Injury with respect to competition against other streaming platforms
[32] CBC added that the digital programming market is still relatively new, and digital broadcasters continue to evolve their business models as they fight for market and revenue share. Part of this evolution is figuring out the degree to which advertising can be incorporated into programming before it results in a loss of subscribers. CBC added that it was not unique in this endeavour, citing other competitors such as Netflix or YouTube who offer a similar choice between cheaper or free offers with advertising versus paid or more expensive ad-free offers. CBC explained that as a result, knowing what others are doing in relation to the amount of advertising, and what impact any change in that regard has in subscription numbers, is clearly commercially sensitive.
[33] In support of its position, CBC relied on a CRTC decision, Broadcasting Decision CRTC 2023-34, which reads, in part: “the Commission finds that it would not be appropriate to publish subscriber figures, even in aggregate form”. CBC then explained that the CRTC does not publish subscriber figures, even in aggregate form, for online undertakings like CBC Gem.
[34] According to CBC, the CRTC recognizes the impact of disclosing subscriber numbers for digital platforms. CBC asserted that it is commonly understood within the industry that subscriber numbers are commercially sensitive, and that they should be kept confidential to avoid placing market participants at a competitive disadvantage. In support of this assertion, CBC referred to the CRTC’s Broadcasting Regulatory Policy 2022-47, which reads, in part:
The Commission is of the view that publishing collected data by undertaking or by ownership group could influence the competitive positions of the survey respondents by providing insight into the value of specific digital rights. (at para. 138 of the policy)
Given the commercially sensitive nature of some of the data that the survey will collect, the Commission considers it appropriate to exercise its discretion to vary the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure and grant full confidentiality against any disclosure of data at the level of individual DMBUs [digital media broadcasting undertakings]. (in the introduction of the policy)
[35] However, both the quoted CRTC regulatory policy and Broadcasting Decision concern its Annual Digital Media Survey (ADMS), which applies to both Canadian and non-Canadian online undertakings. They both address how the ADMS should be conducted and how the gathered data for this ADMS should be published. Paragraph 27 of the Broadcasting Decision states that:
[…] the Commission determines that the data must be (i) accurate, (ii) complete and (iii) readily comparable. The application of these criteria, with respect to data collected in response to the ADMS for any given year, will ensure that any published data provide an accurate picture of the state of digital media broadcasting in Canada.
[36] CRTC also states at paragraphs 32 to 36 of the Broadcasting Decision, that while the subscriber figures provided in response to the ADMS are both accurate and complete, these figures do not seem readily comparable between respondents, as the respondents to the ADMS reported these figures in very different ways. In CRTC’s view, publishing these figures even in aggregate form would not be meaningful, or would even present a misleading picture.
[37] It appears then that the CRTC Broadcasting Decision, while partially quoted by CBC to justify the application of paragraph 18(b) on the withheld information, did not associate the non-publication of subscriber figures in its annual digital media survey with the sole purpose of preventing harm to the competitive position of the respondents such as CBC. It rather appears that it was of the view that the differences in how the data had been gathered would not result in a meaningful picture if the data were to be published, in an aggregate form or not.
[38] Additionally, the CRTC published this decision based on its own method and purpose for collecting and using this data, provided by several DMBUs for a period of time. The data collected through this survey concerns the revenues, programming expenditures, number of paid and free subscriptions and other sources of revenue from each DMBU participating to the survey, and it clearly appears that publishing the collected data of this survey would allow for figures provided by the respondents to be compared. In comparison, in the case of this access request, the information at issue is only the number of paid subscriptions to one platform (CBC Gem), at a specific moment in time.
[39] CBC argued that even though the requested information provides a static figure from a specific point in time, once disclosed, there is a real possibility that a requester could ask for the same information again at other moments. A competitor could therefore monitor any changes that are made to what is available on CBC's free service and its paid service, and would have the opportunity to file an access request for subscriber numbers to see what (if any) impact those programming changes had on the audience. Therefore, even if only the number of paid subscribers to Gem at a specific moment in time were disclosed, there would be a risk that a competitor who has monitored CBC's activities, and who has specialized knowledge in what any change in CBC's subscription numbers might demonstrate, could combine it with additional information in the future.
[40] While it is possible that in the future CBC might receive repeated requests for this same type of information, such that a requester might make certain correlations between programming activities and subscriber numbers, at this point in time, CBC has failed to demonstrate that this is more than “merely possible”.
[41] Finally, CBC’s representations did not explain how a competitor could use the information in such a way that CBC’s competitive position is prejudiced.
[42] I am therefore of the view that CBC did not demonstrate that the identified harm to its competitive position would occur with an expectation that is well beyond a mere possibility, if the information at issue were to be disclosed.
Injury with respect to Broadcast Distribution Undertakings
[43] In addition to competition with other streaming platforms, CBC submitted that the release of the number of paid subscribers is also likely to hamper its competitive position vis-à-vis Broadcast Distribution Undertakings (BDUs) - also known as cable and direct-to-home (DTH) satellite service providers. CBC explained that BDUs are required to carry CBC's News Network 24-hour news service operating in francophone markets at a regulated wholesale rate, while CBC must negotiate the terms and conditions of carriage with BDUs operating in anglophone markets. Given that CBC News Network is included on the premium Gem service, CBC stated that the size and trends of digital usage on an alternative platform (here CBC Gem) would have an impact on any BDU negotiation. Indeed, CBC explained that this would provide the BDUs with additional information that would otherwise have been unavailable during negotiations in order to try to reduce the fee payable in non-mandatory markets. CBC stated that the result would be a direct loss in revenue and would result in less money for CBC to invest in programming, which could lead to an impact on CBC’s competitive and/or financial position as a result.
[44] The term “interference” has been interpreted by the courts as meaning “obstruction”, as indicated by the corresponding French word “entraver” (see Canada (Information Commissioner) v. Canada (Minister of External Affairs), 1990 CanLII 13058 (FC), at pages 682-3. See also Canadian Broadcasting Corp. v. National Capital Commission, 1998 CanLII 7774, para 29, Blood Band v. Canada (Minister of Indian Affairs and Northern Development), 2003 FC 1397, para. 49).
[45] The reasonable expectation of an actual obstruction to the negotiations must be shown. The heightening competition that might flow from disclosure is not enough for the requirements of the exemption to be met (see, for example: Burnbrae Farms Ltd. v. Canada (Canadian Food Inspection Agency), 2014 FC 957, paras 124-125).
[46] The paid premium version of CBC Gem offers access not only to CBC's News Network 24-hour news service, but also to an extended range of programs without advertisement, compared to its free version. Therefore, the subscribers to this paid premium version may not necessarily have the sole motive of wanting to access the 24-hour news service, but could simply want to access programs without having advertising interruptions. It remains unclear then how the number of paid subscribers to this platform for a specific date could be used by BDUs when negotiating the rate to carry this 24-hour news program.
[47] I am therefore not convinced that disclosing the information at issue would interfere with the negotiations between CBC and these BDUs or hamper CBC’s competitive position, with an expectation that is well beyond a mere possibility.
[48] Overall, while CBC did identify possible harms to its competitive position or to ongoing negotiations, it did not demonstrate that there was a reasonable expectation that these harms could occur, well beyond a mere possibility.
[49] I conclude that the information does not meet the requirements of paragraph 18(b).
Outcome
[50] The complaint is well founded:
- The information does not meet the requirements of section 68.1.
- The information does not meet the requirements of paragraph 18(b).
Order
I order the President of the Canadian Broadcasting Corporation to disclose the withheld information.
Initial report and notice from institution
On July 14, 2025, I issued my initial report to the President setting out my order.
On August 14, 2025, the Managing Director of Access to Information gave me notice that the President would not be implementing the order because it is CBC’s position that my decision is incorrect.
I remind the President that if she does not intend to implement my order, she must apply to the Federal Court for a review by the deadline set out below.
Review by Federal Court
When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. Whoever applies for a review must do so within 35 business days after the date of this report and serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by this deadline, the order(s) takes effect on the 36th business day after the date of this report.