The Canadian Heritage committee moved ahead yesterday with a Bill C-18 motion that should strike fear in any group that participates in the political process. In a chaotic few minutes toward the end of the meeting, Liberal MP Anthony Housefather introduced a new motion that removed some of the worst of the authoritarian-style provisions previously proposed by the Parliamentary Secretary to the Minister of Canadian Heritage that demanded the private communications of potentially thousands of Canadians. However, it still retained mandated document disclosures that should send a chill into companies, NGOs, and anyone else that engages in, or strategizes about, government legislation. Calling executives into committee is not only appropriate, it is often essential. So too is following up with document demands based on the discussion. But in this case, the Heritage committee is engaged in a fishing expedition based largely on opposition to government legislation.
At issue is Google and Meta’s response to Bill C-18, the bill that establishes uncapped liability for the two companies for linking to news stories. They are both considering stopping news sharing or linking to news in order to comply with the bill’s obligations, which mandate payments for links or require companies to stop linking. That response was once called a business choice by Canadian Heritage Minister Pablo Rodriguez, but is now referred to as intimidation and subversive.
The new motion went through some amendments that ultimately resulted in a different obligations for Google and Meta. Both companies face calls for executives to appear before committee, but the document requirements differ. The requirements for Meta state:
That Meta Platforms Inc., and its subsidiaries, be ordered to provide:
i. All internal and external communications (including but not limited to emails, texts or other forms of messages), save and except direct communications with individual Canadians back and forth, related to actions it planned to take or options it considered or is considering in relation to all Canadian regulation since April 5, 2022, including that under Bill C-18, including but not limited to, restricting the sharing of news content on its platforms in Canada.
ii. Any internal documents, memos or internal communications relating to the impact of the company on the Canadian journalism sector since April 5, 2022.
Meanwhile, Google’s requirements, drawn from a late February motion, state:
That the committee order Alphabet Inc. and all of its subsidiaries including Google to provide:
a) any and all internal or external communications (including but not limited to emails, texts or other forms of messages) related to actions it planned to take or options it considered in relation to Canada’s Bill C-18, including but not limited to those in relation to the testing of the blocking of news sites in Canada;
b)the list of all news organizations blocked by Google, in Canada;
There are two key differences. First, Meta’s requirement features an explicit carve out for “direct communications with individual Canadians back and forth”, whereas there is no such exception for Google. On the other hand, Meta’s demand covers all Canadian regulation since April 5, 2022, while Google is limited to Bill C-18 without a time limit.
The retention of communications with individual Canadians in the case of Google remains a significant concern. Moreover, the premise of document disclosure demands for a private organization’s thoughts on proposed legislation is entirely inappropriate and is likely to chill public participation. Supporters note that document demands are not unprecedented – there have been requests with respect to McKinsey and We Charity – but those involved concerns about completed contracts or programs, not internal analysis of legislation. This targets the companies’ response to legislation without evidence of wrongdoing. Indeed, as the Canadian Chamber of Commerce notes in its strong letter opposing the demand, “the motion sets the stage for a major fishing operation that affects the rights, not only of the companies themselves, but of third parties as well.” Moreover, the targets of the demand are notably limited to opponents to the legislation:
The motion is directed only at the opponents of the bill, whom it accuses of “intimidation and subversion tactics.” Is the government prepared to apply the same disclosure standards to itself and to supporters of the bill, who have a direct and substantial interest in its passage? If it is not prepared to undertake the same disclosures related to its own actions, why will it not do so?
There are obvious risks with an approach that smacks of the government sending a message that there will be retribution for companies that dare to oppose its legislative plans. Yet even beyond the immediate chill, is the incredibly dangerous precedent it establishes. Consider this scenario: the year is 2025 and a newly elected Pierre Poilievre government moves to implement one of its earliest campaign promises by repealing Bill C-11. Creator groups, who spent years lobbying for the bill and participating in CRTC hearings, plan protests given their concerns that the changes will extend beyond user content by limiting potential contributions from foreign streaming sites. The Poilievre government brands the protests “subversive” and an act of intimidation designed to stop legislation from moving forward. In response, it demands that the groups disclose “any and all internal or external communications (including but not limited to emails, texts or other forms of messages) related to actions it planned to take or options it considered in relation” to the legislation.
I would hope that Canadians would oppose such a demand, regardless of their views of Bill C-11. I know I would, because the issue isn’t whether you support a specific piece of legislation or organization. It is recognizing that there must be certain no-go zones by any government, particularly a government that fashions itself as a model for others, a defender of expression, and a supporter of public participation in the political and policy process. One wouldn’t think it needs to be said that conducting fishing expeditions on your critics who you label as subversive sits squarely in that no-go zone. Yet apparently it does.