The Bill C-18 legislative process was marked by repeated warnings from the government that this was an urgent issue that justified its repeated efforts to cut off debate in order to fast track the bill into law before the summer break. In fact, in a late change, the bill was amended to provide that it would take effect with 180 days of royal assent, rather than the previously envisioned staged approach that would have resulted in a gradual development of regulations and implementation. That change has had enormous implications as the law can now take effect at any time but no later than December 19, 2023, which in turn led Meta to move to comply with the law immediately by blocking news links in Canada.
Notwithstanding the government’s plans, the CRTC apparently has other ideas. Yesterday it released its timeline for the development of the mandatory bargaining framework envisioned by the law. The proposed timeline has taken many by surprise as it suggests that mandatory bargaining may not begin until 2025. Given the bargaining process envisioned by the law (90 days to negotiate, 120 days for mediation, followed by arbitration), if the issue goes to arbitration it is unlikely that there will be any payments before 2026. Even if arbitration is avoided – Meta and Google would likely block all news links before that could happen – it will take at least 18 months for any agreements to be considered by the CRTC under the law.
The CRTC’s plan includes a public consultation this fall that will address the following issues:
- How bargaining and arbitration process will work;
- A code of conduct parties will follow to support fair negotiations;
- The eligibility process for news organizations;
- Addressing complaints from eligible news organizations when online platforms act unfairly;
- Data the CRTC should collect to fulfill its mandate under the Act.
Once that consultation is complete, it will use the results to establish the code of conduct and bargaining process by the summer of 2024. Certifying “eligible news businesses” and confirming arbitrators could take the process into early 2025, at which time the mandatory bargaining process can begin. While the news lobby has indicated that it believes negotiations can begin immediately, it is difficult to negotiate without certified eligible news businesses since that is a crucial aspect of the agreements. Further, CRTC approval of the agreements would presumably require the certification to be completed.
While there remains considerable uncertainty, it would appear that taken together, the government will soon introduce its draft regulations and the law will take effect by December 2023. At that time, Meta and Google will be subject to the law as digital news intermediaries if they are making news available in Canada. Meta has made it clear that it is exiting the news business in Canada. Indeed, today’s report on a meeting with the Minister seems to reinforce that perspective given that the meeting was requested by the government and Meta says it simply reiterated its position that regulations alone will not address its concerns about a law premised on mandated payments for links.
Regardless, the bargaining process, certification of eligible news businesses, and CRTC review of potential agreements will not begin until 2025. This creates the worst of all worlds: either news link blocking by the Internet companies in order to comply with the law or no deals until the system is fully operational in 2025 and into 2026. Moreover, if Google joins Meta in news link blocking, the CRTC will be developing a bargaining system that does not apply to any Internet company. It’s a confusing process, but one thing is clear: Canadian media outlets take a significant hit under a law that has been poorly conceived, badly implemented, and has not made sense from the very outset given options such as independent funds or taxation that could have resulted in actual, more immediate support to the sector.