The rhetoric around Bill C-18 has escalated in recent days in light of the awful wildfires in NWT and British Columbia. In my view, the issues associated with these tragic events have little to do with Meta blocking news links and the attempt to bring it into the conversation is a transparent attempt to score political points (the connectivity issues with some NWT communities completely taken offline for days is somehow never mentioned). The reality is that Meta was asked about just this scenario at committee and it made it clear that it would not block any non-news outlet links. That is precisely what has been happening and the government’s legislative choices should be the starting point for understanding why compliance with the law involves blocking a very broad range of news links that extend beyond even those sources that are defined as “eligible news outlets”.
The government and supporters of Bill C-18 talking points now emphasize two things in relation to Meta blocking news links: the law has yet to take effect and there is room to address their concerns in the regulation-making process. Both of these claims are incredibly deceptive, relying on the assumption that most won’t bother to read the actual legislation. If they did, they would see that (1) the law has received royal assent and can take effect anytime and (2) the regulation making process addresses only a small subset of Bill C-18 issues with most of the core issues finalized. In other words, the time to shape the law and address many of the key concerns was before the government repeatedly cut off debate in order to ensure it that received royal assent before the summer break.
Start with when the law takes effect. As noted above, the law has been passed and received royal assent. It is the law of the land and there is no scope for changes or amendments without a new bill that must be passed by Parliament. Section 93 establishes when the provisions come into force. The law initially envisioned a staged approach whereby certain sections would be proclaimed in effect by the government in stage one, followed by four additional stages, some of which were contingent on certain regulations coming into force. Yet at the last minute the government approved a Senate amendment that basically discarded the entire approach. Section 93(6) states:
(6) Despite subsections (1) to (5), any provision of this Act that does not come into force by order before the 180th day following the day on which this Act receives royal assent comes into force 180 days after the day on which this Act receives royal assent.
The entire law therefore takes effect no later than 180 days after royal assent, which is December 19, 2023. This change was included at the urging of the Canadian media sector (specifically Quebecor) which lobbied to have it take effect as soon as possible. Under this approach, the law can take effect at any time as the government need only issue the relevant Orders-in-Council. There is now little wiggle room. As of today’s post, the latest the law will take effect is in 120 days but it could happen well before that.
Once the law takes effect, the clock on negotiations and potential mediation and arbitration begins. The timelines are fixed in Section 19(1) of the law: 90 days to negotiate and 120 days for mediation. If there is no agreement and no request to the CRTC to extend the deadlines, the issue can go to final offer arbitration. To be clear, none of these timelines are subject to the regulation making process. They are fixed and they create obvious urgency for anyone facing compliance requirements.
The regulation making process is the other issue worthy of closer examination, given the misleading claims about the ability to use the process to address concerns with the law. Start with some of the issues that are not subject to any new regulations:
- All the definitions, including the definition of digital news intermediary, news business, news content, and news outlet.
- The requirements related to “making available of news content”, which includes both reproduction and “facilitating access to news” such as linking. These are already defined and there are no additional regulations forthcoming
- The ability for the CRTC to issue an interim order or repeal an exemption order with respect to digital news intermediaries
- The timelines, steps, and scope of the bargaining process
- The limitations on copyright user rights in the bill, including restricting the right of platforms to cite copyright limitations and exceptions
- Which news outlets are considered “eligible news businesses”
- All the rules related to the arbitration process, including selection of arbitrators, dismissal of offers, and much more
- The rules on discrimination, preference and disadvantage
- The rules on production orders
In case this list isn’t obvious, this is the vast majority of the law. There are no forthcoming regulations and nothing further to discuss on them as all of these provisions have received royal assent.
So what is still subject to potential government regulations? Section 84 spells out most of them:
The Governor in Council may make regulations
(a) respecting the factors set out in section 6;
(b) respecting the time at which or the period within which an operator must notify the Commission under subsection 7(1);
(c) respecting how the Commission is to interpret subparagraphs 11(1)(a)(i) to (viii);
(d) setting out conditions for the purposes of paragraph 11(1)(b); and
(e) setting out conditions in respect of a provincial public broadcaster for the purposes of section 28, if the provincial minister responsible for that broadcaster has made a request to the Minister.
Translated from legalese, these cover:
(a) The factors that are to be considered if there is a “significant bargaining power imbalance” between digital news intermediaries and news outlets
(b) When a digital news intermediary must notify the CRTC that the law applies to it
(c) How the CRTC is to interpret the rules on granting digital news intermediaries an exemption from arbitration (ie. approve the private deals struck by the platforms)
(d) Regulations that establish new conditions for granting an exemption from arbitration
(e) Regulations for including provincial public broadcasters such as TVO as potential eligible news outlets
In addition, Section 76 establishes the power to establish a host of regulations related to penalties. Beyond the government, the CRTC will be empowered to establish regulations on a wide range of issues, but those are supposedly independent of government and not part of this process.
That’s it. The claims associated with the government’s regulation making process have been vastly overstated. Indeed, if it was the platforms making the claims, they would probably be called disinformation. About the only regulation that really matters right now involves Section 11, since it sets the criteria for an exemption from arbitration and approval of the deals between platforms and media companies. The reports about Google and the government negotiating aspects of the law surely involves what the exemption criteria is and how it will be interpreted. For example, the inclusion of a minimum spend by way of regulation would provide cost certainty and effectively have the government dictate to the CRTC how the criteria should be interpreted (namely, ignore them all if Google meets the spending target). The remainder are minor and have no real impact on how the law will be applied to Meta or Google.
When News Media Canada says “what we’re saying to Meta is, ‛The regulations aren’t drafted yet. Pick up a pen. Put down your saber and let’s try to work through this together” it’s a fake out designed to deceive. There are no regulations to be discussed that change the core elements of the law. It’s been decided, has received royal assent, and kicks in anytime within the next 120 days. News Media Canada and the associated lobby groups won the battle for Bill C-18. It’s the resulting consequences they don’t like.
“the inclusion of a minimum spend by way of regulation would provide cost certainty and effectively have the government dictate to the CRTC how the criteria should be interpreted (namely, ignore them all if Google meets the spending target).”
This doesn’t seem like a small deal, though. For example, if that minimum spend were brought down to the level of the contributions that Meta/Google were already making towards Canadian media before C-18, then Meta/Google very well might agree to carry news links again.
You are correct – that is not a small deal – for a number of reasons.
If the minimum spend is set that way, then any *new* deals will not be subject to arbitration. That would leave the government open to the claim that it has just destroyed a key point of the law – the power imbalance – and completed invalidated the independence of the CRTC.
Both claims would be roughly correct. The impression is, though, that the government will do nothing that climbs down from their current position, and that as long as they are generating what seems to be positive press, they will stick with this.
That suggests that rather than your rational outcome, what we will get is a stream of good press for the government, right up to the point where – 120 days from now – all sections fully come into force, and the press discovers that this was never going to be a good way forward.
At that point, with no deals, no money, and no way forward, we might then see a shift in some reporting. How does that cliche go? Too little, too late?
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Well, “At that point” the media companies would have a chance to learn the lesson that all Canada is currently slowly and painfully learning: Promises from the current Liberal/NDP government are utterly worthless, and if you count on them for anything you WILL be disappointed.
Maybe that will shock some of the press into a more realistic view of the current failed circus in Ottawa, but history shows faint hope for such a change.
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While in principle I agree that “There are no regulations to be discussed that change the core elements of the law. It’s been decided, has received royal assent, and kicks in anytime within the next 120 days”, in practice I am not so sure that things are so written in dried concrete. We’ve had acts where certain clauses have been ignored before, or at least not enforced.
For instance, most police forces, prior to the legalization of cannabis, didn’t enforce laws regarding possession of small quantities. And I remember the stink that was created back in 2015 when Stephen Harper told Elections Canada to start enforcing the part of the Canada Elections Act where most people who had been living outside of Canada for more than 5 years lost the right to vote in federal elections, which had been on the books since at least 2003.
Thus I prefer to think of the rules as written in wet cement even if they are coded into the Act.
That’s an incredibly big business risk. That interpretation might hold – right up to the moment where it does not. And when the government position is that complying is not supposed to include not even taking part, it is an even bigger risk.
Your legalization example is one where most parties were on the “there are bigger things to worry about” side.
But for this one? Meta is one of only two, and there are hundreds of millions of dollars on the line. This feels like they are looking for any way they can to drag them into being a DNI. The moment they are a DNI, they are required to negotiate with every eligible news org that shows up.
Finally – these are regulations. They can change rather suddenly in ways that legislation can not. The cement is always going to be wet. There might be a exemption from arbitration – perhaps a minimum achieved deal value – that looks ok (let’s say $200 million) and all is good. And then suddenly that regulation is changed to $500 million. But since you are already a DNI, you no longer have a choice.
And, behind all this, don’t forget the potential legal liability. If management has evidence this constitutes a financial risk (that large dollar value) and the underlying value of the operations to the company is low (which Meta claims is the case for news), but out of the goodness of your heart, you pay anyway, your own shareholders can take the directors to court for allowing a decision that is not in the best interests of the corporation.
The incentives just do not line up here to get to the claimed government goals. Between this and the (sad) state of competition law in Canada, this was inevitable given the wording of the bill.
What I was trying to point out is that it is not unusual for there to be differences between the way that regulations are set up in Canada and the way the act that the regulations amplify are written. And in other cases the differences are in the way that they are enforced.
I agree that it is a big risk for the companies to assume that the regulations to be produced will change the interpretation of the act enough to make a financial difference to the company. And yes, regulations can be changed pretty much on a whim. At least this act doesn’t have a clause in it (or at least one that I saw) which basically states “any other as prescribed by the commissioner”. Clauses like this have been used to substantially change the impact of existing acts.
The current government has had this issue with people or organizations pushing back against them… They tend to dig in. In fact they seem to view compromise as something that the other person does, not them, and in this case the risks of compromising on their part is that the news media starts to produce more negative coverage of them. Since they seem to have started into election mode (more so, since they never really left it) they don’t want to be seen as being “weak” and capitulating to large corporations or to unpopular causes or people.
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Meta’s blocking of news about Canada is all about: GREED, GREED, GREED. Need I say more?
You need not say more. We can safely ignore your statement, given it contains very little content, no evidence, and all-caps.
News links on Facebook are *good* for news companies (and for Facebook, although much less so).
The government made a law that treats news links *as if they are a bad thing* that has to be penalized with massive fines.
When the government makes something illegal, people generally stop doing that thing. That’s not called “greed”; it’s called “following the law”.
I agree. But you imply that the greed in on the part of Meta where I view it as greed on the part of PostMedia, TorStar, Quebecor, Woodbridge, etc.
Yes, the Government of Canada’s greed. It took a beneficially symbiotic relationship — social media got engagement through the sharing of links, which directed people to the media’s websites — and tried to shakedown social media for money, because they chose to listen only to struggling legacy media companies and not to any of the reasonable comments made by commenters, including non-partisan ones.
As the expression goes, pigs get fed while hogs get slaughtered. And the Liberals were more than happy to lead a charge, followed closely by the legacy media, straight into the abattoir.
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This reduces cheating in elections. Even though it’s stricter, it’s more effective.
Implementing a minimum spending requirement through regulation would establish a clear cost framework, potentially leading to the government instructing the CRTC on how to interpret the criteria, possibly disregarding them entirely if Google meets the spending threshold.
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