CBC launches court fight to keep Gem subscriber numbers confidential

CBC/Radio-Canada has filed an application in Federal Court to fight an order directing it to disclose subscriber numbers for its Gem streaming service.

The information commissioner ordered CBC to make available the number of paid subscribers to Gem following an access-to-information request for the data.

CBC/Radio-Canada president Marie-Philippe Bouchard told The Canadian Press the subscriber numbers are sensitive commercial information.

That confidentiality matters when it comes to things like commercial negotiations on bundling Gem with other streaming services, Bouchard added.

The public broadcaster is "charged with making some of our budget out of commercial relationships," she said.

"And that has to be played according to the rules of the market. And so we're finding ourselves, with this ruling, uncomfortable with the interpretation."

In refusing to disclose the numbers, CBC cited exemptions for programming activities and information that could harm its competitive position.

In her final report on the access-to-information complaint, Information Commissioner Caroline Maynard wrote that she agrees the subscriber numbers relate to CBC's programming activities, but they also relate to its general administration, which means the exemption to disclosure does not apply.

Maynard said 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 information commissioner's ruling contradicts the Canadian Radio-television and Telecommunications Commission's (CRTC) interpretation of what constitutes "sensitive commercial information," she said.

Bouchard said CBC/Radio-Canada wants the courts to provide clarity on the issue.

Bouchard was questioned about CBC’s decision to take Maynard’s ruling to court during an appearance before the House of Commons heritage committee on Monday.

Conservative MP Kevin Waugh pressed Bouchard on why she was uncomfortable releasing the number of paid Gem subscribers.

“Are you embarrassed about the numbers of CBC Gem? Why don’t you come out and just say ‘Here’s the numbers we got,’?” Waugh asked.

Bouchard offered that roughly 5 million people have created an account, though she declined to say how many are paid subscribers.

“The number of people who are paying is a number we keep confidential for competitive reasons — and it is validated by the CRTC. So we're asking the court to simply reconcile these two interpretations that are contradictory,” she said.

CBC launched the streaming service, which has both paid and free versions, in 2018. The paid version, which costs $5.99 a month, includes ad-free on-demand streaming and a stream of CBC's 24-hour news channel, CBC News Network.

Paid subscribers "are not what makes Gem," Bouchard told The Canadian Press. "Gem is mainly a free-to-user service. And the paid part is really a commodity for people who don't want advertising."