By: Jaime Dublanko
Meta and Google have both announced the end of news availability for their Canadian users in response to the recently enacted Bill C-18. While some have praised Bill C-18 for enhancing fairness in the digital news marketplace at a time when newsrooms are struggling, critics are concerned the bill undermines freedom of expression and Canadian copyright laws.
Bill C-18
On June 22, Bill C-18, An Act respecting online communications platforms that make news content available to persons in Canada, received Royal Assent.
Also known as the Online News Act, Bill C-18 was introduced by the Canadian Heritage Minister, Pablo Rodriguez, to address bargaining imbalances regarding how Canadian news content is shared by search engines or social media networks. The bill is part of the Liberal Government’s broader effort to exert more control over the internet, including Bill C-11 and C-27 which tackle streaming platforms and privacy respectively.
Once in force, Bill C-18 will require that news businesses be compensated by “digital news intermediaries” (DNIs) such as Meta and Google for news available on their platform, including reproducing any portion of the news content or providing a link. The bill is modeled after Australian legislation that similarly compelled Google and Meta to pay for third-party news content on their platforms.
Bargaining Process
To fulfill Bill C-18’s stated purpose of enhancing fairness in the Canadian digital news marketplace, the bill establishes a framework through which DNIs may enter into fair commercial agreements with “eligible news organizations”.
Section 27 outlines the criteria to determine which news outlets are eligible to take part in the negotiation process. To be eligible, a news outlet must be a qualified Canadian journalism organization that regularly employs two or more journalists in Canada, have content edited and designed in Canada, produce non-niche content, and adhere to some standard of professional ethics.
When a DNI makes content available from an eligible news organization, the bill is triggered and a commercial agreement must be negotiated. This includes an initial 90-day bargaining period, followed by a 120-day mediation period if the initial negotiation failed. If an agreement is not reached, arbitration is mandated and overseen by the Canadian Radio-television and Telecommunications Commission (CRTC). The CRTC selects 3 arbitrators to make a final decision that is binding on both parties. The CRTC is also required to establish a code of conduct to be followed during the aforementioned bargaining and mediation processes.
DNIs with existing agreements with Canadian news organizations can be exempt from the mandatory bargaining process if their agreements, taken as a whole, satisfy the following criteria set out in Section 11:
Provides fair compensation to the news organizations for the news content made available by the DNI;
Ensures an appropriate portion of the compensation would be used by the news organizations to support local, regional, and national content;
Does not allow corporate influence to undermine the new organizations’ freedom of expression and journalistic independence;
Ensures innovative business models in the Canadian news marketplace are encouraged, and contribute to the sustainability of the Canadian news marketplace;
Involves a diverse range of business models that reflect diverse communities with respect to language, minority communities, and Indigenous communities.
Who Bill C-18 Applies to & Industry Response
To qualify as a DNI under Bill C-18, a digital platform must (1) have a significant bargaining power imbalance over news outlets, and (2) “make news content produced by news outlets available to persons in Canada.”
When determining the bargaining power of a digital platform, section 6 states that the platform’s size, market position, and if the platform’s market offers a strategic advantage over news businesses must be considered. While the primary targets of the bill are Meta and Google, it is unclear what other platforms can be classified as DNIs based on this subjective criteria. This uncertainty is not helped by the requirement that DNIs self-report to the CRTC if the bill applies to them. However, the bar seems to be high considering companies such as Apple, Twitter, and Microsoft lack the requisite power imbalance to qualify as DNIs.
Even if a platform has significant bargaining power, they are not a DNI if they do not make news content available to persons in Canada. This is the approach taken by Meta, who recently announced they are removing all news content from their platforms in response to Bill C-18. Given that the bill’s definitions of ‘News Outlet’ and ‘News Content’ includes content in any format that reports on current issues with no geographical restrictions, Meta will have to remove all news from both Canadian and international news outlets to outright avoid DNI status.
Google has taken a different approach by only removing links to news published by “eligible news businesses”, thus avoiding the mandatory negotiating process between DNIs and eligible news businesses. Since eligible news businesses are at minimum qualified Canadian journalism organizations (Section 27), Google will only need to remove links to Canadian news outlets. These websites will still be accessible by typing the web address directly into the browser, and international news outlets (BBC, CNN, NYT, etc..) will still be accessible through links.
The Meta/Google news ban has already begun impacting Canadians, including those fleeing wildfires who are unable to share news stories with updated highway conditions on social media. The Moot Times will likely not be accessible on these platforms as with other student publications across Canada.
Concerns
Proponents of Bill C-18 contend that digital platforms financially benefit from the news content they host and should pay for that benefit. Others see the bill as a way for news organizations to support themselves after losing ad revenue to Meta and Google, which enjoy about 80 percent of all digital advertising revenue in Canada.
Opponents of the bill counter that it is really the news organizations benefiting from DNIs hosting their content, not the other way around. When people click a news link on social media or a search engine it drives traffic to the news outlet’s site and generates revenue. This is echoed in Google’s Senate testimony on Bill C-18, which read “[b]y making Canada the first country in the world to put a price on free links to webpages, this Bill ignores the existing $250M value of free traffic to publishers and sets a dangerous precedent that is contrary to the long-term interests of the Canadian news ecosystem.”
Michael Geist, a law professor at the University of Ottawa and Canadian Research Chair in Internet and E-commerce Law, has also been an outspoken critic of the bill. He asserts that “Bill C-18 is a law about forcing some platforms to pay for links. It gives the government the power to regulate who pays and which expression is worthy of payment. In doing so, it creates a threat to freedom of expression for all Canadians.”
The Minister of Justice did prepare a Charter Statement for Bill C-18 as required by the Department of Justice Act. The statement “supports the consistency” of the bill with the right to freedom of expression, noting that news organizations do not have to enter into commercial agreements but those that do will benefit from enhanced fairness.
The Supreme Court of Canada has previously emphasized the importance of hyperlinks in Crookes v Newton, where the court recognized that while hyperlinks themselves do not communicate content, and that the restriction of hyperlinks “seriously restrict the flow of information on the Internet and, as a result, freedom of expression.”
Geist further notes that headlines or brief summaries that accompany articles would be enough to engage mandatory negotiation under Bill C-18. While typically these types of summaries are permitted under Canada’s fair dealing copyright laws without the need for compensation, Section 24 of the bill “effectively suspends the fair dealing rights of the platforms for the purposes of negotiating an agreement.” This violates the underlying principles of Canadian copyright law and breaches Canada’s obligations under the international Berne Convention.
Critics of Bill C-18 have also pointed out that based on data from the Parliamentary Budget Office [PBO], the real beneficiaries of Bill C-18 are wealthy broadcasters including Bell, Rogers, and Shaw. Of the estimated $329 million per year the bill will generate, less than 25% of the revenue will go to Canadian Newspapers. It seems to go against the stated purpose of the bill to hand out millions to Canada’s wealthiest telecom companies, especially when the news they are being compensated for may just be links to content only available to their cable subscribers.
Many questions remain about what Bill C-18 will look like in practice, especially given the fact that the CRTC has never directly regulated the news market before. While platforms have no obligations as of yet, the Online News Act will come into force incrementally, with all provisions coming into force within 180 days after June 22.
