The Standing Committee on Canadian Heritage launched its hearings on the Online News Act (Bill C-18) with a pair of hearings late last month. At this stage, it remains unclear whether the committee will undertake the extensive study the bill deserves. I appeared in the very first hearing, using my opening statement to touch on four key concerns: the definition of “use”, government intervention, the risk of increased misinformation, and the breaches of Canada’s trade and treaty obligations. Coinciding with National Newspaper Week, this week’s Law Bytes podcast features an introduction to the bill and audio clips from the appearance. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.
The podcast episode is part of a series on why Bill C-18, the Online News Act, is a bad solution in search of a real problem. This is the fifth post, with earlier ones examining: the risk to the free flow of information stemming from mandatory compensation for linking, how the bill encourages clickbait and other low quality news given the absence of standards in the definition of “news content”, the unprecedented government intervention in a sector where independence is essential, and the how the bill undermines Canadian copyright law and Canada’s international copyright law obligations.
Appearance before the House of Common Standing Committee on Canadian Heritage, September 23, 2022
Good afternoon. My name is Michael Geist. I’m a law professor at the University of Ottawa where I hold the Canada Research Chair in Internet and E-commerce Law and I’m a member of the Centre for Law, Technology and Society. I appear in a personal capacity representing only my own views.
With the start of the Jewish New Year about 48 hours away, I just wanted to begin by thanking the committee for planning to look into the funding of anti-semite as part of Canadian Heritage’s anti-hate program and to urge it to fully investigate how this happened and to ensure it never happens again.
I have been quite critical of Bill C-18, but that criticism does not stem from doubts about the importance of a robust, diverse news sector. That success is critically important to ensuring an engaged, aware citizenry and holding our democratic institutions to account. Rather, I have concerns about the method of support. I have spoken positively about the government’s tax-focused programs and would back mechanisms that bring even greater support, perhaps through the establishment of contribution to funds that in turn support journalism. But that isn’t the approach in Bill C-18, which I believe raises some serious concerns as currently framed and drafted.
I have limited time, so let me highlight four issues.
First, the approach to the “use” of news articles extends far beyond what a reasonable person would consider use. Section 2(2) covers both reproduction of any portion of a news article and facilitating access to news by any means. The first part means that even reproducing a headline or sentence summary is covered, even though that form of use is freely permitted by copyright quotation rights under the Berne Convention. The second part means that linking or indexing to the front page of a news site – not even to an article – is treated as a compensable activity. That just can’t be right – treating mere linking as a thing of value requiring compensation runs counter to Supreme Court jurisprudence on the importance of linking and threatens the lifeblood of the free flow of information on the Internet.
If Google or Facebook copied and distributed full articles, I could understand the arguments around compensation. Indeed, those companies have struck deals to pay for exactly that. But when Dr. Fry posts a link on her Facebook to an MSN.ca article or Mr. Julian posts a link on his Facebook to a Canadian Press article as they did this summer like millions of other Canadians, I don’t think we are anywhere near a making available news standard that should require compensation.
Second, the government has claimed the bill involves “minimal market intervention.” Yet the reality is that an astonishing number of standards and bargaining rules are established by government or the CRTC in this bill. This has a real world impact with government interference blurring the news editorial and business divides.
Third, at a time when there are rightly concerns about misinformation and low-quality news sources, Bill C-18 risks increased misinformation. For example, the definition of “news content” contains no standards or link to professional journalism. Instead, the definition – which itself is different in the English and French language versions of the bill – could incorporate blog posts, opinion pieces and other content. The government’s approach on Qualified Canadian Journalism Organization (QCJO) has detailed guidance on what constitutes news to ensure that tax breaks go to high quality, original journalism. Bill C-18 does the opposite.
Moreover, the bill creates potential liability for platforms that use algorithms to demote content. To be clear, we need greater algorithmic transparency. But the provision on undue preferences may mean that platforms refrain from demoting low quality journalism for fear of liability.
Fourth, the bill is offside several treaty and constitutional obligations. For example, Section 24, which excludes copyright limitations and exceptions from the bargaining process, may violate Article 10(1) of the Berne Convention, which has a mandatory right of quotation that expressly includes newspaper articles.
The bill is filled with potential CUSMA challenges. For example, Section 51 of the bill features what amount to “must carry” obligations designed to prevent a platform from refusing to link to third party content. While self-dealing measures targeting anti-competitive conduct are welcome, these provisions go beyond that and are vulnerable under CUSMA’s Performance requirements in Article 14.10.
With regard to the constitutional concerns, the bill isn’t broadcast, it isn’t telecommunications, and it isn’t copyright. How then does it fit within federal powers? If the government claims powers over anything involving the Internet then there are no real limits on its jurisdiction. As for the charter statement, it inaccurately claims that the bill supports news organizations when the Internet platforms “monetize” their news content, even though that is not at all what the bill says or provides.
I look forward to your questions.