Canadian Heritage Minister Pablo Rodriguez is on the defensive as he tries to defend Bill C-18 in the wake of both Google and Facebook signalling that they may remove Canadian news from search results and social media sharing in light of the government’s approach that creates mandated payments for links. Rodriguez appeared on CBC yesterday and had no answers for the questions about what he will do if the companies walk away from news given government estimates that they could be on the hook for 35% of the news expenditures of every news outlet in Canada if they continue to link to their news content. More notably, he contradicted both his own bill and his own department officials when he told Postmedia that “C-18 has nothing to do with how Facebook makes news available to Canadians.” For those who followed months of gaslighting with Bill C-11, this comment will provide a sense of deja-vu since Rodriguez sometimes leaves the impression has only read media lines, rather than his own legislation.
So let’s be clear: Bill C-18 is very much about how Facebook makes news available to Canadians. The bill’s obligations, which included mandated negotiation, CRTC review of deals, and possible final offer arbitration, is triggered for Google and Facebook provided they meet the definition of a “digital news intermediary” or DNI. The definition states:
digital news intermediary means an online communications platform, including a search engine or social media service, that is subject to the legislative authority of Parliament and that makes news content produced by news outlets available to persons in Canada. It does not include an online communications platform that is a messaging service the primary purpose of which is to allow persons to communicate with each other privately.
I have bolded the key element in the definition, namely that a digital news intermediary makes news content available to Canadians. Given the definition, it is inexplicable that Rodriguez would claim the bill has nothing to do with the very issue that sits at the heart of the legislation.
The bill also includes a definition for making news content available:
(2) For the purposes of this Act, news content is made available if
(a) the news content, or any portion of it, is reproduced; or
(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 (a) speaks to what most Canadians think of with use: reproducing or copying the text of news articles. Subsection (b) is why Bill C-18 is so problematic, since it expands the definition of making news available to facilitating access by any means, which clearly includes linking. Indeed, the Department of Justice’s Charter Statement for Bill C-18 explicitly states that linking is covered by the bill. Efforts by the media lobby to sow doubt on the issue does little to foster public trust in the Canadian media.
There simply isn’t any question but that Bill C-18 involves mandated payments for links with the foundation of the bill resting on how Facebook and Google make news available to Canadians. Indeed, if they choose not to link to the content, they cannot be said to be facilitating access to news content. They therefore would not be DNIs under the legislation and would be compliant with Canadian law without the need to pay for linking.
There are complexities in the bill, but this isn’t one of them. For Rodriguez to say otherwise runs counter the bill’s explicit provisions, raising the question of whether he is deliberately misleading or does not know the contents of his own bill. In fact, Rodriguez need only listen to Owen Ripley, his lead official on Bill C-18 and with whom he has often appeared before committee. The following exchange during the clause-by-clause review of Bill C-18 removes any doubt about the role of linking in the bill:
Mrs. Rachel Thomas: I’m going to try my hand at a tangible example here. As Canadians right now we have the incredible ability to exchange ideas within public platforms or online platforms such as Facebook. It’s this new form of a public square where ideas are exchanged and sometimes quotes are taken and expressed and entire news articles are sometimes posted. I recognize that if Facebook continues to allow articles to be posted, they will be declared a DNI and they will need to enter into negotiations. Facebook has said that they may consider removing the ability of news to be shared on their platform so that they cannot be scoped into this legislation. If they were to make that decision and Canadians wanted to take a quote from a newspaper article and post that quote on their Facebook page as a small snippet, would Facebook be allowed to permit that without being captured by this legislation?
Mr. Thomas Owen Ripley: Thank you for the question, MP Thomas. The concepts of “making available” or ”facilitating access to” are really intended, again, to…. The primary driver behind this bill, if we could go back to first principles, is recognizing that Canadians use these services in order to access news content. Primarily, it’s that idea of facilitating access to it. We’ve heard the debate around whether linking should be included or not, but the government’s position is that you need to include it because, at its core, that is what it means to facilitate access to news content in the modern digital environment. Regarding the example you give, in a context where Facebook has made the business decision to essentially prevent the ability of users to link to news articles but an individual is quoting from a particular news article without a link, no, I do not believe that would engage or trigger the application of the act.
Mrs. Rachel Thomas: But as soon as a link is included, then they would be scoped into this legislation.
Mr. Thomas Owen Ripley: From my perspective, the act of linking is a critical one. It boils down to the facilitation of access. Again, at the crux of this bill is a recognition that the ways that a significant number of Canadians navigate to news content is via social media services or via a search service, which involves clicking on the link. Yes.
This where the government is at with Bill C-18. A Canadian can post a quote from a news article on their Facebook page, but if they include a link to the source article, there would be a requirement for the platform to negotiate mandatory payment for linking. pic.twitter.com/8dt618rHaQ
— Michael Geist (@mgeist) November 29, 2022
Rodriguez says he is open to discussing the bill with Google and Facebook, but it is unclear what there is to talk about if he does not know his own bill and its implications. As it stands, Bill C-18 establishes mandated payments for links, which the Parliamentary Budget Officer says could result in payments of hundreds of millions of dollars, more than 75% of which would go to broadcasters such as Bell, Rogers, and the CBC. The bill sets the requirement that if you link, you pay and if you don’t link, you don’t have to pay. Given that choice, it is no surprise the Internet companies are considering not linking to Canadian news. The only real surprise is that the government seems to have no idea what to do should that happen.