The first two posts in the series on why Bill C-18, the Online News Act, is a bad solution in search of a real problem focused on the risk to the free flow of information stemming from mandatory compensation for linking and how the bill encourages clickbait and other low quality news given the absence of standards in the definition of “news content.” The series continues by highlighting the remarkable extent to which the government and its regulator (the CRTC) intervene in the news sector, an approach that creates significant risks to an independent press.
The government appears to recognize the risks that come from intervention and have therefore sought to assuage concerns by describing the bill as “a market-based solution that involves minimal government intervention.” Yet the reality is Bill C-18 features an unprecedented level of government intervention into the market in the news sector. Just how extensive is the government’s involvement? Some of the provisions that delegate decision-making powers to the government or CRTC include:
- The government establishes the standards to determine which Internet platforms are required to negotiate agreements or enter into binding arbitration. It can also establish further regulations on the issue. (Section 6)
- The government establishes the standards of what constitutes an eligible news organization for the purposes of requiring the Internet platforms to negotiate agreements or enter into binding arbitration (Section 27) and designates the CRTC to issue orders for who qualifies. The government plans additional regulations for public broadcasters.
- The government establishes the standards to determine whether a private agreement is entitled to an exemption order from binding arbitration and can establish additional regulations (Section 11(1)). The CRTC rules on whether the agreement meets the standard and can establish additional regulations. The standard includes assessments on whether the agreement provides fair compensation, allocates an appropriate portion of compensation to news content, doesn’t allow corporate influence to undermine freedom of expression, contributes to the sustainability of the Canadian news marketplace, ensure benefits for independent local news businesses, and involves a wide range of news outlets (Section 11(1)(b)).
- The CRTC can also issue an interim order in circumstances where it does not believe the criteria for an exemption are met, but expects it will change its opinion within a reasonable period. In other words, it will pressure the parties into changing the agreement (Section 12(1)).
- The CRTC can repeal exemption orders and interim orders (Section 14).
- The government establishes all the steps in the bargaining process and the rules for mandatory arbitration (Section 19).
- The government limits the use of copyright limitations and exceptions in the bargaining process (Section 24).
- The CRTC runs the arbitration process, including establishing qualifications of arbitrators (Section 33), selecting the arbitration panel in some instances (Section 34), and determining if any arbitrators have a conflict of interest (Section 35).
- The government establishes the factors the arbitration panel must consider in making its decision (Section 38).
- The government orders the arbitration panel to reject offers that are not in the public interest or “inconsistent with the purposes of enhancing fairness in the Canadian digital news market” (Section 39).
- The CRTC is required to establish a code of conduct for the bargaining on news content (Section 49(1)). The government establishes multiple factors that must be included (Section 49(3)).
- The CRTC is empowered to demand any information from either platforms or media organizations (Section 53).
- The CRTC is required to appoint an independent auditor to review the impact of the bill on the Canadian digital news marketplace. The government establishes the content that must be included in the report (Section 86).
Future posts in this series will address several of these provisions. In the meantime, it is important to emphasize both that this intervention comes just as virtually all large media entities and dozens of smaller ones have signed agreements with Internet platforms such as Google and Facebook and that extensive government intervention into this market represents a serious threat to press independence. I know of cases where opinion pieces have been spiked by mainstream media outlets because they criticized the previous Heritage Minister at a time when he was being actively lobbied on a potential media bill. Those decisions come on top of blank front pages and advertorials designed to curry support for the measures. The blurring of editorial and financial may be a fact of life, but it ultimately diminishes the credibility of the media.
For example, in 2021 I pitched an opinion piece on then Heritage Minister Steven Guilbeault to one of Canada’s leading media outlets. The opinions editor liked the idea and worked with me over several drafts to finalize the piece. I was told it was ready for publication and then I waited. And waited. And was then told the piece was spiked by upper management given the subject matter and the campaign for legislative support from Canadian Heritage. I’m not alone – Carleton professor Dwayne Winseck reports that he had an approved piece that raised criticisms of the bill spiked by the National Post (the Toronto Star spiked an opinion piece of his last year on similar grounds).
To be clear, no one is entitled to space for an op-ed and there are multiple ways for people to make their voices heard. However, Rodriguez has emphasized that his bill is designed to support an independent press free from government interference or pressure. Pressure can come in many ways and the pressure to support the Minister and the government on Bill C-18 – which supports the organizations engaged in the lobbying rather than direct support for original journalism – is palpable.