The hearings on the Online News Act – Bill C-18 – wrapped up last week with a final session in which I had the unexpected opportunity to appear and again raise concerns with the bill. My focus this time was on how the bill mandates payments for links and why that approach is a threat to freedom of expression in Canada. This week’s Law Bytes podcast takes you inside the hearing room as it features my opening statement and clips from exchanges with MPs from several parties that touched on everything from innovation to copyright reform to the rules for final offer arbitration. My full opening statement is posted below.
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.
Appearance before the House of Common Standing Committee on Canadian Heritage, November 4, 2022
Good afternoon. My name is Michael Geist. I’m a law professor at the University of Ottawa. I appear in a personal capacity representing only my own views.
Thank you to the committee for this unexpected opportunity to speak about Bill C-18, particularly following some of the technical challenges I faced during a prior appearance.
I’d like to focus my remarks on why the bill mandates payments for links and why that creates a threat to freedom of expression. Before doing so, however, let me highlight several additional concerns that I’d be happy to address in further detail during the question period.
First, Bill C-18’s eligibility criteria are deeply flawed. I think everyone is aware that the current rules exclude many small news outlets. Beyond that, the dominance of broadcasters in this system – notably companies such as Bell as well as the CBC – runs counter the professed goal of the bill of supporting local independent news. The Parliamentary Budget Officer estimates over 75% of the revenues will go to these companies. This despite limited tangible connection between links from digital platforms and radio stations and that CBC news content is a public good for which facilitating access should be encouraged.
Second, many of the eligible news outlets will not be subject to journalistic standards under the bill. Unlike the QCJO model which features detailed rules to ensure appropriate standards before tax support is available, Bill C-18 allows other news outlets – including foreign outlets – to qualify without similar standards, risking increased misinformation and low quality journalism.
Third, Bill C-18 violates copyright norms by suspending limitations and exceptions from the bargaining process in section 24. This runs counter to the foundation of Canadian copyright law and may violate Article 10(1) of the Berne Convention, which has a mandatory right of quotation that expressly includes newspaper articles.
Fourth, Bill C-18 establishes final offer arbitration, yet still intervenes in the process by allowing the panel to reject final offers. That upends the entire purpose of the model, which is designed to encourage best offers by both sides.
Fifth, I think it is important to note that the government’s existing policies with tax support may be working. Minister Rodriguez talked about over 400 news outlets closing since 2008, but neglected to mention the same report found over 200 new news outlets opening in the same period and that there have been no net losses over nearly the last two years.
There are other concerns, but I’d like use my remaining time to focus on the biggest issue – mandated payments for links.
The definition for facilitating access to news content at Section 2(2) – upon which the system is based – includes a breathtakingly broad definition that clearly includes links, aggregation and even indexing. The inclusion of links is not in doubt: Minister Rodriguez has talked about the value of links, the Canadian Association of Broadcasters told the committee the value of links was “the whole purpose of why we’re here and what we’re talking about with Bill C-18”, and earlier this week Mr. Coteau said he found it astonishing that some argue that if you click on a Twitter link, there is no value.
The Supreme Court of Canada has warned that that creating liability for links could impair the way the Internet functions. Yet payments for links are at the core of this bill and it doesn’t matter if it is an aggregate charge for all links or a per link fee. The harmful impact is the same.
But Bill C-18 not only requires payments for links, it says that expression with links is not equal: links to news content from sources such as Bell or the CBC are viewed as compensable, but similar links to news content from small media outlets are not. Further, the bill effectively says that whether compensation is due also depends on where the expression occurs since it mandates that certain venues pay to allow their users to express themselves. Post a link to a Globe and Mail news article on Facebook and the bill says there is value that should be compensated, but post the same link on Twitter as Mr. Coteau noted and the bill says it doesn’t.
Aside from the obvious unfairness, the broader implications of this policy are even more troubling. Once the law says that some platforms must pay to permit expression, the same principle can be applied to other policy objectives and the entire foundation for sharing information online is placed at risk.
To be clear, helping journalism is important. But Bill C-18’s dangerous approach ascribes value to links where there isn’t any, regulates which platforms must pay in order to permit expression from their users, and dictates which sources are entitled to compensation. There are better ways to do this including the fund model that has been supported by some of today’s panelists in the past.
I look forward to your questions.