Heritage Minister Pascale St-Onge went on a media offensive late last week, granting interviews to a wide range of publications. St-Onge noted that she had “positive” talks with Google and Meta that she hoped would result in a compromise and improbably claimed concern for users’ rights to share information online, an odd position given that Bill C-18 undermines the free flow of information online with its mandated payments for links approach. St-Onge got the headlines she was no doubt looking for, but it was pretty obvious that not much had changed, with Meta confirming that she had requested the meeting and that it is continuing to end news availability in Canada. While that was typical of the English-language coverage, St-Onge’s comments to French language outlets such as La Presse and Journal de Montreal added another dimension, with the Minister suggesting that companies should negotiate deals by year-end in order to become “exempt” from the law.
St-Onge may want to leave the impression that there is an easy out for the tech companies, yet the reality is those comments fundamentally misunderstand how Bill C-18 works. First, signing agreements does not result in an exemption from the law. Unlike the Australian law – which did grant the government the ability to grant an exemption under the law – the Canadian law does not adopt the same approach. So long as Google and Meta facilitate access to news content (ie. link to it), they will be treated as digital news intermediaries (DNIs) under the law and there is no available exemption. This means that the many rules in Bill C-18, including codes of conduct, disclosure requirements, rules governing the display of news content, etc. are likely all applicable to them regardless of the existence of negotiated agreements. Simply put, when St-Onge claims the companies would be exempt under the law based on agreements that could be signed over the coming months, she is wrong.
Second, perhaps St-Onge meant to say that reaching agreements by year-end would exempt the DNIs from the final offer arbitration process in the law. However, this too is at best misleading since merely signing agreements does not achieve that outcome. Rather, the agreements are submitted to the CRTC, which is tasked with reviewing them and considering whether to approve them as sufficient to avoid the final offer arbitration process. The CRTC could expand the exemption order, but the full scope of such an exemption remains uncertain. In fact, there is enormous uncertainty associated with this process with both additional government and CRTC regulations to come. That uncertainty is a significant concern, since companies could sign agreements and still find themselves subject to the final offer arbitration process.
Third, St-Onge’s assurances about deals signed over the coming months ignores the CRTC’s timeline for implementing Bill C-18. The CRTC does not envision mandatory bargaining starting until early 2025, which means that approval of “eligible news businesses” could take years. Given that timeframe, the Internet companies don’t even have the full slate of media companies with whom they can negotiate since Commission certification is still years away.
St-Onge indicated that the draft Bill C-18 regulations could come this week. Those regulations may provide increased certainty on some issues, but – as I wrote here – their scope is still fairly limited. Indeed, most of the law is finalized. The new Heritage Minister would do well to ensure she understands it.