Registration desk sign by NHS Confederation (CC BY 2.0) https://flic.kr/p/9YxwXp

Registration desk sign by NHS Confederation (CC BY 2.0) https://flic.kr/p/9YxwXp

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Weak Walk-Back: Why Steven Guilbeault’s Reversal on Government Licensing News Sites Still Leaves a Huge Regulatory Structure in Place

Canadian Heritage Minister Steven Guilbeault yesterday attempted to walk-back comments from the weekend in which he said regulating news sites “was no big deal.” Guilbeault now says the government does not intend to require licences or registration from “news agencies.” When asked repeatedly how to draw the line between “news agencies” (which is not a term used in the Broadcast and Telecommunications Legislative Review Panel report) and other news sources, Guilbeault was unable to provide a clear answer. Despite the lack of specifics, Guilbeault maintains that he still intends to introduce legislation within months.

While the decision to reject mandatory licensing or registration of some news services is a good step, it is nowhere near enough. The BTLR envisions a massive regulatory structure with the CRTC empowered to regulate Internet sites and services worldwide. There are few limits to what is covered: social media services, online streaming services, news aggregators, communications services such as Skype, podcasting sites, app stores, operating systems, and device manufacturers are all somehow considered part of the “system” and potentially subject to regulation and mandated payments.

Even with respect to Canadians accessing news, consider the scope of regulation envisioned by the panel, most of which is presumably still being considered by Guilbeault for his legislation. For conventional news services that exercise editorial control over their content, the panel would exempt them from levies and discoverability requirements. Further, the government now says there would be no licensing or registration requirements. Yet the definition of “news” is not clear. Minister Guilbeault declined to clarify and the panel itself states:

Only news content (i.e. information about current events) should be included in the expanded scope of the legislation. The CRTC should continue to have the flexibility to define what constitutes news content over time, as lines blur between what is thought of as news and information.

In other words, the CRTC will decide what constitutes news (and is therefore exempt from some licensing or registration requirements as well as mandated levies) and what is information or commentary (which would be subject to all regulatory requirements). For many sites and services, there is a combination of news and information, creating uncertainty about the scope of the regulatory requirements.

Further, the CRTC would still be empowered to regulate the economic relationships between “media content undertakings” and “content producers”. Media content undertakings is broadly defined to include news organizations delivering alphanumeric news content. This allows the CRTC to play a role in determining the terms on which news is made available through various sites and services online. The CRTC would also be able to require these news organizations to disclose consumption data (ie. what are readers reading), which the regulator would be permitted to publish in aggregated form.

The regulatory structure for news aggregators is far more extensive and Guilbeault has said little about the government plans for these sites and services. News aggregators include services that curate the news (ie. make editorial choices about the content that appears on their sites) such as Google News, Yahoo News, National Newswatch or Drudge Report. It also includes sites and services that permit sharing of news stories such as Reddit, Twitter, and Facebook. It would presumably also cover podcasting services such as Apple Podcast and Spotify.  In other words, it captures a huge (and hugely popular) segment of the Internet with thousands of sites and services that millions of Canadians rely upon every day.

The panel leaves no doubt that these rules apply to foreign sites and services. It states:

We recommend that for greater certainty, the Broadcasting Act be amended to establish that the legislation applies to undertakings carried on in part within Canada, whether or not they have a place of business in Canada. This would include undertakings, persons, and entities that disseminate media content by telecommunications to Canadians or make media content available to Canadians for compensation. We further recommend that the reference to the sector as a single system that shall be owned and controlled by Canadians be removed from the Act.

For all of these services, the full scope of regulation applies unless the CRTC decides to exempt them: registration or licensing, mandated levies, and discoverability requirements. The discoverability requirements would mean the CRTC would require these sites and services to include “links to the websites of Canadian sources of accurate, trusted, and reliable sources of news” and meet “prominence rules to ensure visibility and access to such sources of news.” The CRTC would determine which Canadian sources are trusted and how links would appear on these sites. The panel envisions the possibility of extending these discoverability requirements to a broad range of services, even including device manufacturers. It states:

app stores and devices, along with the operating systems, application programming interfaces and preloaded applications, play an essential role in determining what content or services are accessed on the Internet. As such, they can significantly influence the discoverability of Canadian content. Some content and service providers are now selling devices that can prefer their own affiliated media content services. For example, early announcements regarding HomePod speakers seemed to imply that they will only give users access to Apple Music and iTunes and not to competing online music services, such as Spotify. In this context — to the extent that undertakings curate (as a primary purpose), aggregate, or enable the sharing of audio or audiovisual content, or alphanumeric news content — they should be subject to discoverability requirements.

In addition to discoverability, the CRTC would be empowered to require these organizations to disclose financial information, consumption data, and algorithmic information. It would also be empowered to regulate commercial negotiations between news providers and these sites and services. It is not clear how the CRTC would enforce these rules against foreign sites, but the panel recommends using significant penalties of up to $200,000 per day for failure to comply with some rules. In fact, the panel specifically recommends considering even bigger penalties to act as a deterrent for foreign undertakings.

Minister Guilbeault tried to assure Canadians that the government has no intention of regulating the news media. Yet the reality is that the BTLR proposes media and news regulation that extends far the poorly-defined “news agencies” that Guilbeault tried to take off the regulation table. It is time to expand the weak walk-back with an unequivocal rejection of these regulatory proposals.

10 Comments

  1. We ingest online material every day, all day long. Imagine if the government had the temerity to regulate – what a horrible word in Geist’s view – that other thing we ingest daily: food. Yes, imagine if the food we eat were regulated. How it is grown, processed and packed. Is it safe? Is it clearly labelled? Whether from farm or factory. Whether domestic or foreign, large producer or small. All would be subject to the same public safety provisions, the same regulations. We’d all be up in arms I’m sure!

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  5. If foreign sites without a presence in Canada decline to register or make mandated financial contributions, what will be the CRTC’s response – the Great Firewall of Canada?

  6. What counts as a presence in Canada, too? A .ca host? Involvement of a Canadian-registered corporation? Use of a Canadian hosting service or cloud provider? Transmission through Canadian-located cables or airwaves?

    • Neither limited to the .ca, nor to any existant notion of jurisdiction. This requires that everything we watch, anywhere in the world, be reviewed. This is sheer madness. As an open liberal society we should be passing laws which ensure that laws such as these are never suggested again!

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