The first post in this series on Bill C-18, the Online News Act, focused on the problematic approach to what constitutes “making news content available”, as it encompasses everything from indexing to linking to news stories without reproducing the actual text. The approach raises serious risks to the free flow of information online and expands the law far beyond reasonable expectations of what “use” of news articles might mean. But the problems with expansive definitions in the bill are not limited to the “making available” provision. Bill C-18’s definitions for “news content”, “news business”, and “news outlet” are also exceptionally broad, raising their own series of concerns.
News content is defined in the bill as “content – in any format, including an audio or audiovisual format – that reports on, investigates or explains current issues or events of public interest.” The “news content” definition is essential since the application of the entire system is premised on the making available of news content. Yet the bill is so broad that it covers content far beyond the journalism that the government purportedly seeks to support. For example, there is no reference to journalism (professional or otherwise), suggesting that the bill could be used by bloggers or almost anyone reporting on content involving events of public interest. There are no quality standards and the definition includes opinion pieces, rather than reportage.
Further, the definition in the French version of the bill doesn’t even match the English version. The French version defines news content as “Contenu – quel qu’en soit le support, notamment audio ou audiovisuel – qui rend compte de tout enjeu ou événement actuel d’intérêt public, l’explique ou fait suite à une enquête sur un tel enjeu ou événement.” The key difference relates the audio or audiovisual formats, with the English version using the word “including” such content and the French version using the word “notamment”, which typically is taken to mean “notably” or “especially.” Is the government intending to prioritize audio or audiovisual content within the definition of news content? Which version is correct?
Assuming that question gets sorted out, there is the larger question that arises in comparing the sparse Bill C-18 definition where Internet platforms are expected to pay for linking to all manner of content with the specificity used in the Income Tax Act for news content produced by Qualified Canadian Journalism Organizations (QCJO). The goal of these respective programs is very similar with support for Canadian journalism either by way of tax credits (the Income Tax Act/QCJO model) or compensation from Internet platforms. But while platforms are expected to potentially pay for links to blog posts and opinion pieces, the government only offers a tax credit for news content under much stricter criteria. The general definition in the Income Tax Act as supplemented by the Canada Revenue Agency excludes much of the content covered by Bill C-18:
The original news content of an organization generally refers to reports, features, investigations, profiles, interviews, analyses or commentaries that are:
B. written, researched, edited, and formatted by and for the organization;
C. based on facts and multiple perspectives actively pursued, researched, analyzed, and
d. explained by a journalist for the organization; and
e. produced in accordance with journalistic processes and principles.
There is nothing like this in Bill C-18. Moreover, the CRA adds a full analysis of what constitutes original news content, presumably with the intent of ensuring that government policy incentivizes high quality journalism and not low quality clickbait:
The term original news content includes content for which research, writing, editing and formatting are conducted by and for the organization. Therefore, whether news content is original depends on the active involvement of a journalist in its creation. Original news content is produced through gathering facts and should show evidence of first-hand reporting, such as independent research, interviews, and fieldwork. For example, a news article or report about an event would be original if it is written or reported by a journalist and is based on first-hand knowledge that journalist gained by conducting independent research, attending or witnessing the event, or interviewing people who organized, attended, or witnessed the event.
The rewriting, translation, reproduction or aggregation of news from external sources (including articles from news agencies, a current or previous issue of the same publication or any other publication) would not be considered original. Content produced in such a manner, by or for an organization, will factor into the determination of whether the organization is engaged in the production of original news content.
In addition, lightly edited reproductions of news content would not be considered original news content. For example, an article that repeats material from a news release with no evidence of further independent research and no additional facts, third party perspectives, or context, would not be considered original news content.
Original news content should be based on journalistic processes and principles, which include:
a. a commitment to researching and verifying information before publication;
b. a consistent practice of providing rebuttal opportunity for those being criticized and presenting alternate perspectives, interpretations and analyses;
c. an honest representation of sources; and
d. a practice of correcting errors,
but do not include:
e. solicitation, design or production of advertising;
f. advertorials, sponsored content, branded content (any content where a third party, advertising client or business partner, participates in the development of the concept or directs or gives final approval to a large portion of the content);
g. stories produced primarily for industrial, corporate or institutional purposes; or
h. editing content that is entirely or principally accumulated or produced by algorithms or by aggregation software.
Content that is acquired, created, used, or presented in a way that contradicts journalistic processes and principles (for example, content that is plagiarized) would not be considered original news content.
None of this appears in Bill C-18, which contains no real standards or limitations. In other words, while the government has established a detailed, targeted system to support journalism in the Income Tax Act, the Online News Act has all the hallmarks of a cash grab with few limitations, safeguards, or attempts to limit compensation to journalistic news content. This is a clear policy choice from Canadian Heritage Minister Pablo Rodriguez, since the QCJO approach could have been used as the standard. The deliberate choice to expand the definitions means that organizations that would not qualify under the QCJO standard because they do not produce qualifying news content, would still easily qualify under Bill C-18. This creates a strange set of incentives, encouraging mass production of low-quality content with few standards that will generate mandated payments from Internet platforms as opposed to creating incentives for high quality, original, professional journalistic content.
The definitions for “news business” and “news outlet” aren’t much better. News business is defined in Bill C-18 as “an individual or entity that operates a news outlet.” News outlet is then defined as “an undertaking or any distinct part of an undertaking, such as a section of a newspaper, the primary purpose of which is to produce news content.” Taken together, any undertaking with a primary purpose of producing (broadly defined) news content qualifies as a news business.
With a low Canadian threshold for eligibility (employ two Canadian journalists and edit or design content in Canada), the broad definitions depart from the QCJO standard and open the Bill C-18 door to any organization anywhere, so long as they meet the eligibility criteria. When combined with the facilitating access standard that covers linking and indexing as well as the news content definition without standards or links to journalism, Bill C-18 seemingly encourages global forum shopping where Canada becomes the home to multiple claims against Internet platforms. There are obvious fixes that include a QCJO standard for news content and a deeper Canadian connection for news businesses among them, but little indication the government is interested in getting this right. Indeed, few may care if the platforms pay bigger bills, but the approach has little connection to addressing the concerns about the health of Canadian journalism and the news sector.