Last Tuesday, Justice Minister David Lametti tabled his department’s Charter statement for Bill C-18, the Online News Act. A link to the statement appeared briefly on the department’s website, but by the end of the week reference to the Bill C-18 Charter statement was removed from the Justice site altogether. As of this morning, there is still no reference to the statement, even though it is a public document having been tabled in the House of Commons. In fact, I have now obtained a copy of the Charter statement and posted it publicly here with an embed below. The department will presumably re-post the statement at some point and it would be useful to confirm that it remains unchanged and provide an explanation for the online removal (I asked and did not get a response). [UPDATE: Hours after this blog post went live, the government posted the Charter statement.]
Beyond the puzzling removal, the substance of Charter statement is notable since it fails to provide a convincing argument on the constitutionality of the bill. First, it should be noted that it is obviously limited to Charter issues and does not address broader constitutional concerns. If the bill passes, it is likely to be challenged on the grounds that the regulations that touch on the news sector fall outside the federal government’s jurisdiction. In addition, the Charter statement leaves little doubt that questions about whether the bill is Charter-compliant will also be raised. The statement fails to seriously grapple with questions such as the freedom of expression implications that arise from government-mandated payments for linking, indexing or otherwise facilitating access to news.
While the government will surely argue the bill is Charter-compliant, the arguments presented in the statement are exceptionally weak. For example, the statement misstates the goal of the bill:
The goal is to support news businesses to negotiate and receive fair compensation when third parties with a dominant market position monetize their news content in a market environment that has been disadvantageous to news businesses.
In fact, there is no reference or requirement for the platforms to monetize news content in order to be captured within its scope. Bill C-18 adopts an extreme approach in which compensation is contemplated merely for facilitating access to news, which extends far beyond reproduction and has no direct link to monetization.
The statement also confirms that hyperlinks are caught by the bill. The government has refrained from specifically referencing linking in the limited debate in the House of Commons or in its materials on the bill. The Charter statement confirms that links are covered:
Under the Bill, a digital news intermediary could make news content available by reproducing it or by facilitating access to the news content, including by generating links to news content. Facilitating access to news content could be done through any means, including by way of an index, aggregation or ranking, all of which are methods used by online platforms to organize and distribute news content.
While the statement suggests that individual links do not “automatically or necessarily require” compensation, the reality is that by treating links as a compensable activity, they will be factored into compensation within negotiated agreements or arbitration. The impact of treating links or indexing information as compensable raises serious concerns regarding new barriers to access to information. A Charter challenge would undoubtedly argue that the bill is far too broad in this regard, since a bill that was truly carefully tailored to its objectives would be limited to direct monetization or reproduction.
The Charter statement also provides a helpful list of the breadth of CRTC powers and market intervention that arises from the bill. The government has claimed the bill involves “minimal market intervention”, but here is how the Justice department describes it:
The Bill would grant new roles and powers to the Commission. The Commission’s new responsibilities would include drafting a Code of Conduct to guide negotiations; determining which news businesses are eligible to participate; maintaining a list of digital news intermediaries to which the Act applies; determining when a digital news intermediary may be exempt from the regime because voluntary negotiated agreements satisfy statutory criteria; supporting the arbitration process; receiving complaints about various matters related to the framework; and applying administrative monetary penalties for non-compliance. The Commission would also have the power to draft regulations to govern various aspects of the operation of the Act.
The Bill authorizes the Commission to gather the information it requires to fulfil its responsibilities. Persons designated by the Commission may also order the production of records from a digital news intermediary operator or eligible news business where there are reasonable grounds to believe the records will be relevant to verifying compliance with the Act or preventing non-compliance. Parties who provide certain types of sensitive commercial information to the Commission, including trade secrets, may designate this information as confidential. Information designated as confidential would be subject to special use and disclosure restrictions backed by offence provisions. The Commission would have the authority to disclose designated information in the public interest, after considering representations from interested individuals and entities, or to disclose it to the Commissioner of Competition, where the Commission considers the information to be relevant to competition issues that have arisen. Both the responsible Minister and the Chief Statistician of Canada may request and obtain information submitted to the Commission, including designated information, for the purpose of
performing their statutory functions.
It simply isn’t credible to argue that Bill C-18 involves minimal market intervention. In fact, the now-missing Charter statement undermines the credibility of Canadian Heritage Minister Pablo Rodriguez on several key aspects of the Online News Act.