Last week, I appeared before the Standing Committee on Canadian Heritage as part of the last panel of witnesses on Bill C-18, the Online News Act. For the first time since the start of the pandemic I attended in person, which provided the opportunity to witness a scene that partly occurred off-camera. NDP MP Peter Julian started his questioning by citing with approval a Postmedia editorial, itself based on a Brian Lilley column. The editorial expressed support for Bill C-18, criticized Facebook, and took the Conservatives to task for not being more supportive of the proposed legislation. Seeing an NDP MP rely on a Lilley-inspired Postmedia editorial was strange enough, but adding to the weirdness was Liberal MP Lisa Hepfner scrambling to find the editorial on her phone and showing it around to caucus colleagues. While some might merely chalk this up to a common enemy – Facebook – I believe there is a bigger enemy at work, namely the loss of an independent press.

I’ve written before about how Bill C-18 is bad for press independence, stating:

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.

The issue arose during my first appearance before the Heritage committee as supportive witnesses were asked directly about press independence and each assured MPs that the bill would not have an impact on their independent coverage. Uh huh. Over the past week, as Bill C-18 nears the finish line, Postmedia has run the Lilley column, its masthead editorial, a piece from an Australian commentator, and an op-ed from Liberal MP Anthony Housefather [update: And another piece from Taylor Owen]. Each says basically the same thing: Facebook is evil for suggesting that it might curtail news sharing in response to the bill and that all parties should therefore not back down and support the legislation.

I’ve written extensively on why Bill C-18 creates significant risks, but the Postmedia editorial provides a perfect illustration of the some of the problems. The piece focuses on two major concerns. First, it argues that Facebook is biased against conservatives, so doesn’t deserve support. While studies have found the opposite is true with the company’s algorithms more likely to amplify right wing voices, the suggestion that governments or political parties should base their support for legislation on the perceived political leanings of Internet platforms or publishers is incredibly dangerous. Indeed, it is the exact opposite of an independent media. Following this advice creates clear incentives for publishers to tailor their coverage to curry support for their preferred legislation and for governments to respond in kind. What is left is not an independent press, but rather a closed loop between government and powerful voices. For NDP and Liberal MPs to cite this with approval is astonishing.

Second, the editorial is factually wrong on its only attempt to ground the argument in actual law. It points to intellectual property and states the following:

The Tories on the committee also completely ignored the intellectual property rights of Canadian publishers and the fact that Big Tech companies have been profiting off their IP for years. This is a stark reversal for a party that, under the government of Prime Minister Stephen Harper, spent a lot of time and energy passing the Copyright Modernization Act, which made great strides in modernizing this country’s antiquated intellectual property protections.

This is inaccurate on several levels. If anything, Bill C-18 undermines the Copyright Modernization Act by suspending the user rights enshrined in the law and affirmed by the Supreme Court of Canada. In doing so, it risks violating Canada’s international copyright obligations. The IP rights being compromised aren’t the publishers, but rather the platforms. Further, if Postmedia really believed that Facebook was violating its intellectual property rights, it would be the first to assert its rights. Yet it never has. Why? Because there is no IP infringement. Facebook doesn’t reproduce full text copies of Postmedia articles. Not only are the links not infringement, but they are actively encouraged by Postmedia as the editorial literally has a button to encourage readers to share the link on Facebook. 

Third, the editorial contains no disclosure that the company is actively lobbying for the legislation it promotes in the piece. This blurring of self-interested editorial and business functions takes a broom to press independence and sweeps it away. The government says it wants to enhance trust in the media, yet how it can it do that when the media run editorials – instantly endorsed by MPs – that fail to disclose their own conflicts? According to the Parliamentary Budget Officer, Bill C-18 primarily benefits broadcasters such as Bell, Rogers, and Bell. But with Postmedia clearly hoping for a big payday as well, its willingness to discard its independence has been on full display. For the sake of its credibility, it should have been too high a price to pay.