Blocking of news links on Facebook and Instagram in Canada has becomes increasingly widespread in recent days, leading to a growing number of public comments from media outlets and reporters expressing surprise or shock about the scope of the link blocking. Indeed, outlets with blocked links include university student newspapers, radio stations, and foreign news outlets. While there may have been some errors (Facebook has a page to seek review of any blocked link decision), the inclusion of a very wide range of Canadian and foreign news outlets is no accident. Rather, it reflects the government’s Bill C-18 approach, which effectively covers all news outlets worldwide whose links are accessed in Canada. The Canadian government could have adopted a more targeted approach – for example, limiting the scope to news links from those news outlets eligible to negotiate agreements with Internet platforms under the law – but it instead went for the broadest possible approach that includes foreign news outlets with little or no connection to Canada.
Understanding why Bill C-18 covers news links from outlets who are not “eligible news businesses” under the law requires unpacking several provisions. First, start with the definition of a “digital news intermediary”, which 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.
This definition is critical since the only companies that are subject to Bill C-18’s requirement to negotiate agreements with news outlets are (1) those that qualify as DNIs under this definition and (2) meet the requirements found in Section 6 on a significant bargaining power imbalance. The absence of significant bargaining power imbalance is why companies such as Twitter, Microsoft or Apple are not subject to the law. That leaves Google and Meta, provided that they qualify as DNIs. The key phrase in the qualification requirement is that the companies “make news content produced by news outlets available to persons in Canada.” If the companies do not make news content produced by news outlets available to persons in Canada they are not DNIs and are not subject to the law.
So what does “make news content produced by news outlets available to persons in Canada” mean? First, making news available includes:
(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.
Government officials have confirmed that facilitation by any means includes linking to the news content.
Since linking is sufficient for the purposes of making news content available, the remaining two relevant definitions involve “news content” and “news outlet.” News content is defined as:
content — in any format, including an audio or audiovisual format — that reports on, investigates or explains current issues or events of public interest and includes such content that an Indigenous news outlet makes available by means of Indigenous storytelling.
This broad definition covers all news content in any format, which helps explain why everything from newspapers to podcasts are covered by the law.
Second, a news outlet:
means an undertaking or any distinct part of an undertaking whose primary purpose is to produce news content and includes an Indigenous news outlet or an official language minority community news outlet.
This notably does not limit the geographical scope of news outlets, which means the news content that a DNI makes available through linking can come from any news outlet anywhere the world. The law includes a separate definition for “eligible news business” (defined at Section 27), which are news outlets that qualify for the law’s negotiation and arbitration system. The government could have provided that DNI’s “make news content produced by eligible news businesses available to persons in Canada.” If it had done so, only links to news from eligible news businesses would result in an Internet platform being treated as a DNI. The news link blocking would have therefore been limited to eligible news business content and left alone most foreign news links and some Canadian news outlets.
Yet the government’s choice was to try to bring Meta and Google into the scope of the law by virtue of any news links to any news outlet anywhere in the world, even if those outlets have nothing to do with Canada or with the Bill C-18 system. Given Meta’s stated goal of complying with Bill C-18 by removing links to news content that would render it a DNI, the government’s legislative choice of covering all news links from all news outlets therefore effectively requires it to block all of those news links.