The study into the Online News Act continues this week as the government and Bill C-18 supporters continue to insist that the bill does not involve payment for links. These claims are deceptive and plainly wrong from even a cursory reading of the bill. Simply put, there is no bigger concern with this bill. This post explains why link payments are in, why the government knows they are in, and why the approach creates serious risks to the free flow of information online and freedom of expression in Canada.
Payments for Links: “The Whole Purpose of Why We’re Here”
First, the statute and comments related to the bill leave no doubt that payment for links is absolutely part of the legislative plan. Section 2(2) of the bill defines making news content available as follows:
For the purposes of this Act, news content is made available if
(a) the news content, or any portion of it, is reproduced;
(b) access to the news content, or any portion of it, is facilitated by any means, including an index, aggregation or ranking of news content.
Subsection (b) is breathtakingly broad and clearly designed to cover links as a means of facilitating access to news content. In fact, the section goes far beyond just links by including indexing and aggregation. Both Canadian Heritage Minister Pablo Rodriguez and the Canadian Association of Broadcasters (CAB), whose members such as Bell are the biggest beneficiary of the bill as they stand to take home more than 75% of the revenues, have both confirmed they believe links have value that should be compensated.
When the bill was first tabled, Rodriguez had the following exchange with Evan Solomon:
Solomon: Can you justify why links are compensatory?
Rodriguez: Because there’s a value to that. If you click on the link and go to the news, there’s a value to that.
I think one point we’re coming to is this idea that a link has value. I think the whole purpose of why we’re here and what we’re talking about with Bill C-18 is the fact that the link is creating more value for the global platforms than for the Canadian journalism organizations. That is the discrepancy we’re trying to address here.
In fact, payment for links is all there is in a system purporting to compensate for a value transfer. Internet platforms don’t publish full text of news articles unless they have a licence. Moreover, the data they gather from users who might click on a news link is indistinguishable from similar data captured from millions of websites and services that Canadians click on every day. The government not only knows that Bill C-18 involves payments for links, but it also knows that the arguments regarding value for those links are exceptionally weak. To address that weakness, it has crafted the bill to force payment for links by upending copyright law and intervening in the final arbitration process.
From a copyright perspective, Section 24 states:
For greater certainty, limitations and exceptions to copyright under the Copyright Act do not limit the scope of the bargaining process.
Why is the government suspending the fair dealing rights of Internet platforms in the bill? Because it knows that the platforms don’t typically use the news in a manner that would be compensable. For example, the platforms may link to the news, feature a headline with the link or sometimes offer a one-or-two sentence summary or quote from the article. These uses are generally permitted under Canada’s fair dealing copyright law rules and do not require a licence or compensation. In other words, claiming that links might qualify for compensation requires setting aside the platforms’ copyright rights which places Canada in breach of its obligations under the Berne Convention, the international treaty that governs copyright law.
The government’s intervention into the final arbitration process is further evidence that it recognizes the weakness of the argument for payments for links. Bill C-18 mandates final offer arbitration, which encourages the parties to provide their very best final offer as part of the process since the arbitrator must select one or the other. Yet Section 39 gives the arbitration panel the right to reject an offer on several policy grounds. Why would such a provision be necessary in a final arbitration system that encourages submitting your best offer? It is only necessary if you fear one side will examine the evidence and proffer a low offer on the grounds that it does not believe that there has been a demonstration of compensable value. That is a real possibility in this case given that there should be no need to compensate for links and there is little else of value. In light of that risk, the government gives the arbitration panel the power to reject offers that do not meet the government’s policy objectives.
No Difference if Bill C-18 is Called a Link Tax or Payment for Links
How have the government and Bill C-18 supporters responded to concerns about mandated payment for links? By pointing to three arguments, none of them strong.
First, some argue that the bill doesn’t involve payments for links because payments from the Internet platforms would not involve a per link fee but rather cover all links in a single licence. That argument is akin to saying that the big box of mini-candy bars I purchased this weekend for Halloween doesn’t involve payment for an individual bar because I paid an aggregate amount for the entire box. In the case of Bill C-18, whether it is aggregate or individual links is immaterial since the point is that hundreds of millions of dollars is expected to be paid based on the existence of links to news articles.
Second, some argue the bill “doesn’t specify how value is determined, only that use of news content be compensated.” Yet that position acknowledges that there must be some form of use for compensation. If links are out and the platforms don’t publish full text, what use exists that could potentially merit compensation? The platforms offer a more successful digital advertising model, but that has practically nothing to do with the existence of news articles, which are said to constitute only 3% of Facebook posts and even then are only links. Indeed, if the argument is that indexing content requires compensation, then the entire Internet has a claim to be paid for everything available in a search engine and our information ecosystem grinds to halt.
Third, some argue the bill isn’t a “link tax” because payments do not go to the government. This argument is similar to those who reject terms such as iPod taxes or Netflix taxes (preferring levies or mandated contributions), which relies on the semantics of who receives the money as opposed to the establishment of mandated payments due to government legislation. Ultimately, the effect is the same whether it is called a link tax or payment for links.
Why Mandated Payment for Links Matters
Links are clearly at core of Bill C-18, but why should this matter to individual Canadians?
It matters because this approach represents a serious threat to freedom of expression. Links are clearly expression as they allow us to tell our friends, colleagues, and communities where they can find information of interest. The Supreme Court of Canada has recognized their importance, describing links as an indispensable part of the Internet in the Crookes v. Newton case and warning that creating liability for links could impair the way the Internet functions.
But with Bill C-18, the government is saying that expression using links is not equal: links to news content from sources such as Bell, Rogers, and the CBC are viewed as compensable, but similar links to news content from small media outlets are not. I don’t think there is a compelling argument that links are compensable. However, if the government maintains that they are, it cannot reasonably argue that it is only those links from large broadcasters or eligible media outlets that have value.
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 government argues it has value that should be compensated, but post the same link on Twitter and the government says it doesn’t. Identical expression, but the government establishes eligibility rules that say one has value and the other does not based solely on where the expression occurs.
The Bill C-18 Threat to Freedom of Expression
Aside from the obvious unfairness, the broader implications of this policy are even more troubling. Once government decides that some platforms must pay to permit their users to engage in certain expression, the same principle can be applied to other policy objectives. For example, the Canadian organization Journalists for Human Rights has argued that misinformation is akin to information pollution and that platforms should pay a fee for hosting such expression much like the Bill C-18 model. The same policies can also be expanded to other areas deemed worthy of government support. Think health information or educational materials are important and that those sectors could use some additional support? Why not require payments for those links from platforms. Indeed, once the principle is established that links may require payment, the entire foundation for sharing information online is placed at risk and the essential equality of freedom of expression compromised.
To be clear, supporting 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. This is an unprecedented government intervention into the media and freedom of expression. If the government believes that Facebook and Google should be paying more into Canada, tax them and use the funds for journalism support. If that isn’t enough, create a fund for participation in the news system with mandated contributions similar to the Cancon broadcast world. That may not be ideal, but it would at least keep the system arms length, remove the qualification issues, and reduce the market intervention.
I suspect the government fears that Canadians would easily recognize the risks associated with mandated payments for links and fundamental unfairness with the system envisioned by Bill C-18. It is why it has misled on the inclusion of link payments, rejected the Parliamentary Budget Officer’s estimates on who benefits, and sought to frame Facebook’s concerns as a threat, when the real threat lies in the bill itself. But despite those efforts, make no mistake: Bill C-18 is a law about forcing some platforms to pay for links. It gives the government the power to regulate who pays and which expression is worthy of payment. In doing so, it creates a threat to freedom of expression for all Canadians.