Hey-o! It’s your friendly neighbourhood internet law commenter, back after a flurry of year-end posts to his much more normal one post every 3 months schedule. But with the government proposing a “law” about the “internet” I guess I really need to write about that. Let’s get news-y!
The CBC article’s headline about this sums up quite well what’s going on here – “Liberal government tables legislation to force online giants to compensate news outlets”. On April 5th, the government tabled Bill C-18, the Online News Act. Catchy! That’s actually the short title, the full title is “An Act respecting online communications platforms that make news content available to persons in Canada”. Less catchy! Wait, do I now have to pay CBC for linking to that story? Let’s find out! Maybe I am an online giant?
So what is the point of this thing? This is from the government’s press release on the bill, always a reliable source of information:
Bill C-18 would require tech giants to make fair commercial deals with outlets for the news and information that is shared on their platforms
Does “linking to” = “sharing”? Michael Geist seems to think so. Who are these “tech giants” anyway? WTF is a “fair commercial deal”? So many questions. To try to answer them, I am going to do something really innovative – read the bill! And cut and paste text for you! Along with some of my usual commentary disguised as mediocre humour.
Summary and definitions
The bill starts with a summary:
This enactment regulates digital news intermediaries to enhance fairness in the Canadian digital news marketplace and contribute to its sustainability. It establishes a framework through which digital news intermediary operators and news businesses may enter into agreements respecting news content that is made available by digital news intermediaries. The framework takes into account principles of freedom of expression and journalistic independence.
Well we’ll see about that won’t we. It then moves on to the definitions, and a few of them are important. This one in particular:
digital news intermediary means an online communications platform, including a search engine or social media service, that is subject to the legislative authority of Parliament and that makes news content produced by news outlets available to persons in Canada. It does not include an online communications platform that is a messaging service the primary purpose of which is to allow persons to communicate with each other privately.
So Google, Facebook, Twitter, etc. Maybe AllenMendelsohn.com? I communicate around here (barely). It does not include private messaging services. So like LinkedIn messaging? The Act also makes clear that the law would not apply to broadcasters (official term is “broadcasting undertaking”) under the Broadcasting Act and ISPs (when they are just acting as such) under the Telecommunications Act. So if (when) the government starts to regulate online video services as broadcasters (ahem, see Bill C-11) they’ll be exempt from this different kind of mess.
I’ll get to some other definitions as we need them. I love that they have to define “news content” though. It’s pretty broad, covers audio and video too, and includes “explaining” the news. So, like, commentary? Like this blog? So people will have to pay me? Now I think I like this bill!
The next thing in the bill is something very important, what it means to “make available” news content. Here goes:
For the purposes of this Act, news content is made available if
(a) the news content, or any portion of it, is reproduced; or
(b) access to the news content, or any portion of it, is facilitated by any means, including an index, aggregation or ranking of news content.
“Access… is facilitated by any means”. Read it that way. Forget what comes after. “Including” when written in the law means “here are some examples”. If the list that comes after was meant to be exhaustive, you would write “limited to” or something like that.
Linking to is… facilitating access by a mean. In my opinion. I am guessing that’s Geist’s reasoning as well.
The Fancy Statements of Bullsh*t
Before getting to the nuts and bolts, the bill provides some fancy statements, like:
this Act is to be interpreted and applied in a manner that is consistent with freedom of expression.
This Act is to be interpreted and applied in a manner that supports the journalistic independence enjoyed by news outlets
It says so right there in the law, so that summary we read must be true! But it’s the next one that really kills me:
4. The purpose of this Act is to regulate digital news intermediaries with a view to enhancing fairness in the Canadian digital news marketplace and contributing to its sustainability, including the sustainability of independent local news businesses.
That is a political statement, not a legal one. Yegads, who wrote this thing?
Who does this Apply to?
So let’s get into what / who this thing applies to. As mentioned above the “digital news intermediary” is the key. The law specifies it’s really only the big boys:
6. This Act applies in respect of a digital news intermediary if, having regard to the following factors, there is a significant bargaining power imbalance between its operator and news businesses:
(a) the size of the intermediary or the operator;
(b) whether the market for the intermediary gives the operator a strategic advantage over news businesses; and
(c) whether the intermediary occupies a prominent market position.
So not me. OK then. Who decides whether you are big enough to be a digital news intermediary? (Man I cannot keep typing that out. We’ll go with “DNI”). The CRTC of course has all the power:
8. The Commission [ed. – the CRTC] must maintain a list of digital news intermediaries in respect of which this Act applies
And we certainly trust them!
The “Bargaining Process”
Reading the next bits I (think I) have sorted out the way things are supposed to work. The CRTC forces the DNIs to enter into a “bargaining process” with news businesses to “make available” their news content. “News businesses” are business that own “news outlets” that produce “news content”. Got that? However, if the DNI voluntarily entered into agreements with news businesses, the CRTC won’t force them to bargain. How very nice of them! This plays out as the CRTC granting an “exemption order” to the DNI if the DNI “has entered into agreements with news businesses that operate news outlets that produce news content primarily for the Canadian news marketplace.” There are a bunch of factors to determine whether the agreement is good enough for the CRTC to grant an exemption order – things like money (“fair compensation”) and money (“appropriate portion of the compensation” goes to Canadian news). Also, too, more political statements:
(iii) they [ed. – the agreements] do not allow corporate influence to undermine the freedom of expression and journalistic independence enjoyed by news outlets,
(iv) they contribute to the sustainability of the Canadian news marketplace,
Anyway, without an exemption order, we are on to the bargaining! The “bargaining process” is in 3 increasing levels of contentious stages – bargaining sessions, mediation, then finally binding final offer arbitration. The bargaining process is supposed to be limited to matters related to making available. The arbitration at the end is only to be used to determine final $ amounts.
So how do we get to the bargaining? It’s not exactly that the CRTC forces the DNIs to bargain like I wrote a few paragraphs ago, the CRTC will only force them when an “eligible news business” asks the CRTC to force them to. No doubt you are asking who the hell these eligible news businesses are. Me too! You might also ask who gets to determine who is an eligible news business. You probably already know the answer to that. Here’s how it works:
27 (1) At the request of a news business, the Commission must, by order, designate the business as eligible if it
(a) is a qualified Canadian journalism organization as defined in subsection 248(1) of the Income Tax Act; or
(b) produces news content that is primarily focused on matters of general interest and reports of current events, including coverage of democratic institutions and processes, and
(i) regularly employs two or more journalists in Canada,
(ii) operates in Canada, including having content edited and designed in Canada, and
(iii) produces news content that is not primarily focused on a particular topic such as industry-specific news, sports, recreation, arts, lifestyle or entertainment.
Well AllenMendelsohn.com seems to be disqualified on a number of fronts on this side of the ledger too. Dammit! Also, the CRTC does not necessarily need to be asked, they can just say a news business is eligible. Also “public broadcasters” (*cough* CBC *cough*) can be eligible. The CRTC must keep a list of eligible news businesses (ok I am calling them ENBs) on their website. You know, for transparency.
I should note that groups of ENBs can get together and try to make an agreement with the DNI or go through the bargaining process with a DNI. So that is supposed to help smaller companies I guess. And an ENB can join an already existing agreement. This section of the bill ends with a whole bit about how the final offer arbitration works (at least the CRTC isn’t the arbitrator! But they pretty much set the rules…), and then we are on to…
The Remedies and the Penalties
Either side can go to court to get an agreement enforced. The CRTC can “designate a person” (how about me?) to order a DNI or an ENB to produce records and documents to enforce the law. The CRTC itself has powers of enforcement to comply with the law. And bring on the monetary penalties for violations! Up to $50,000 for individuals, and up to $15 million for companies. Yikes! Though that’s couch cushion coins for Google. The law states that a penalty cannot be imposed unless the violator was “given the opportunity to be heard”. That’s nice. There are some procedures for hearings. It amused me that the bill specifies that if you are assessed a penalty you should make out the cheque to the “Receiver General”.
Some miscellaneous other stuff in there
The CRTC has to produce a “Code of Conduct” for the DNIs and ENBs for bargaining. There is some stuff about when the Competition Act does not apply or something, I don’t know. There is more CRTC power, like if they ask DNIs for information the DNI must give it to them or suffer the consequences. Some stuff about making regulations. There would be an annual audit to assess the “impact of this Act on the Canadian digital news marketplace.”
Finally I will note there is this provision that I have read 5 times:
51. In relation to news content that is produced primarily for the Canadian news marketplace by a news outlet operated by an eligible news business and that is made available by a digital news intermediary, the operator of the intermediary is prohibited from acting in any way that
(a) unjustly discriminates against the business;
(b) gives undue or unreasonable preference to any individual or entity, including itself; or
(c) subjects the business to an undue or unreasonable disadvantage.
And I have no idea what it means, it is terribly drafted. It seems very important though. Maybe it is just telling Facebook (sorry, Meta) not to act badly I guess? Good luck with that. And we’re done. Look at us, we read the whole thing!
Superterriffic Happy Hour Analysis
Look, there is plenty of actual, reasoned commentary out there on this topic. It even made the New York Times! Self-interest I guess. I am not here for any reasoned commentary. I am here to inflame passions! Problem is, I am not really inflamed about this (yet). Sure, Canadian news outlets need help. Is this the way to do it? Probably not, these deals won’t save the dying newspaper industry. But whatever. And yes, this grants the CRTC way too much power. But they already have a shitload of power, so what is one more set of powers under one more law? Meh. And is it pretty fucking pathetic to make a company pay for linking? Yes it is. But I have a feeling they are going to fix that before this becomes law (if it does).
What is really pissing me off is the government wasting time on this while the most important file – federal privacy law reform – lays dormant. That’s what these fuckers need be working on, not this shit.
The drafting is indeed uninspired (;-))
I suspect the government has finally noticed that facebook and friends are way better at getting paid by advertisers than news providers are At the same time, the government doesn’t want to break the rule that allows us to link to things and quote snippits.
If the shortest distance between two points is through a middleman, the middleman can take huge profits, especially if they’re part of an oligopoly. The latter, IMHO, is the real problem.
I used to believe that in Canada we could rise above partisan issues and deliver a good product to the consumers, the people of Canada. The Justice system from the cop on the street to the Supreme court is an excellent illustration of Canada’s power to understand the first role of goverment is to provide a fair and equal justice system.
However like our neighbors to the south this probably will not last. Harper damaged all other institutions beyond repair. Chretien would have kicked Trump in the balls, not licked them. Hey Justin had no choice.