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Is Meta Offside the Online News Act? The CRTC Wants to Know.

Meta has blocked news links on its Facebook and Instagram platforms for more than a year in response to the Online News Act, resulting in significant lost traffic to many Canadian news sites. The company’s position has been pretty clear from the start: the law applies to digital news intermediaries that make “news content produced by news outlets available to persons in Canada.” By blocking news links, the company believes that it falls outside the definition and therefore is not required to register with the CRTC and enter into negotiations for payments to Canadian news outlets. After Canadian Heritage Minister Pascale St-Onge repeatedly urged the CRTC to examine the issue, this week the Commission sent a letter to Meta giving it seven days to comment on “what measures Meta is taking to comply with the Act, and whether news is being made available on Meta’s platforms.”

The CRTC’s request is unsurprising given the government’s obvious frustration with how the law has played out. The Commission states that it “has been made aware of reports that news content from Canadian news outlets continues to be available on Meta’s platforms in Canada” and now wants answers. While it is important to note that the availability of news alone does not mean Meta is offside the law, those reports have focused on two issues. First, there are sites that are excluded from the Meta link ban since they do not qualify as news outlets. This includes some sites that appear to rewrite or aggregate news alongside sites such as Narcity that have not qualified as Qualified Canadian Journalism Organizations (QCJO). Second, there have long been reports of users posting screenshots of news articles. These do not link back to the original article nor necessarily include full text. 

While the Meta response to the CRTC will presumably provide insights into what the company is doing and what news is actually getting through its block systems, what does the law actually say on these issues?

With regard to non-qualifying news outlets, the Online News Act’s definitions provide some answers. As noted above, the law applies to digital news intermediaries that “make news content produced by news outlets available to persons in Canada.” The government’s regulations already scope-in Facebook and Instagram based on their size, but that alone is not enough. The company must also make news content produced by news outlets available. In other words, news on Meta may not be news content caught by the legislation or it may come from sites that are not news outlets under the law. That renders two definitions particularly relevant: “news outlets” and “news content”:

  • News outlets are defined as “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.‍” The key wording here is primary purpose. Sites that provide news but is not their primary purpose are not news outlets under the law.
  • 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 is fairly broad but must still include reports on current issues or events of public interest.

The law also includes a definition of “news business” which is an entity that operates a news outlet (ie. if you’re not a news outlet you can’t be a news business) and “eligible news business”, which involves those businesses that may qualify for payments. Those businesses must either be QCJOs or meet a series of criteria that include ensuring that business is not primarily focused on a particular topic such as industry-specific news, sports, recreation, arts, lifestyle or entertainment. The net effect is that sites may have some news (or specialized news such as sports or entertainment) but still fall outside of the law. Meta will likely provide evidence to the CRTC on its news block list and argue that it has been crafted to meet these standards.

The screenshots raise involve a different provision since the legal question is whether screenshots count as making news content available. Section 2 of the Act states:

For the purposes of this Act, news content is made available if

(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.

The intention of the provision was cover to reproduction (ie. instances where the platform copied all or part of news content) or various means of facilitating access such as linking, aggregation, indexing or ranking. Screenshots were never discussed during the committee study of the bill and I do not believe it was what the government had in mind. However, if the screenshot is treated as a reproduction of the news content, it would be caught by the definition. The CRTC will presumably want to consider whether the use of screenshots is material or de minimis – ie. so small as to render the practice irrelevant for the purposes of applying a mandated payment regime.

It may also factor into consideration how Canadian copyright law treats screenshots, which are viewed as non-commercial user content of the poster, not the original news source. Section 29.21 of the Copyright Act provides that these works must meet certain conditions, but if they do, they are new works that do not infringe copyright. Perhaps even more importantly, the Act gives the individual the right to authorize an intermediary to disseminate the work. Under that interpretation, Meta has the authorization to disseminate the screenshots, which are new works treated under copyright law as non-commercial user content. Further complicating the issue is that the Online News Act also has copyright-related provisions that, on the one hand say that limitations and exceptions do not limit the scope of bargaining (the user content provision is a limitation and exception) and on the other say that eligible news business can initiate bargaining only if they own the copyright in the news content. If the bargaining is about screenshots, those are works that the creator of the screenshot can authorize dissemination.

If all of this sounds complicated, it is because no one – not the government, news outlets or platforms – were thinking about screenshots when the law was being developed. What they were thinking about, however, was freedom of expression as the Online News Act provides at Section 3 that it is to be “interpreted and applied in a manner that is consistent with freedom of expression.” User content is clearly freedom of expression and interpretations that limit its dissemination would run counter that section. Indeed, to include screenshots within the ambit of the Act would open the door to other groups arguing that screenshots of their work requires some form of compensation, thereby creating a chill in their creation or distribution. It is bad enough the law mandates payments for links. To mandate payment for screenshots would further undermine a common activity that Canadian law has for years sought to support within the Copyright Act.

15 Comments

  1. At the turn of every corner, it becomes more and more obvious (as if it were not already obvious enough) how badly the Liberal Government has shit the bed on this one.

    Now they are sicking their CRTC on companies that are legally abiding by the law by ensuring they are not participating in the actions it’s meant to regulate.

    I’d be the last person to cheer for Meta on any front, usually, but on this front, you go Meta! Good on you for throwing this all of this nonsense back in Trudeau’s face.

  2. “After Canadian Heritage Minister Pascale St-Onge repeatedly urged the CRTC to examine the issue, this week the Commission sent a letter to Meta giving it seven days to comment on “what measures Meta is taking to comply with the Act, and whether news is being made available on Meta’s platforms.”

    This is wrong on so many levels. First of all, I thought that the CRTC was supposed to be an arms-length institution, reporting to Parliament through Canadian Heritage. That the Minister could do this implies that the relationship is not so arms-length. (I realize that the chair of the CRTC is appointed by Order in Council so they serve at the pleasure of the PM.)

    Secondly, in essence the CRTC is implying that they (or their political masters) think Meta is not complying with the law, and is demanding that they defend themselves, with the accuser being the judge of if they are complying or not. Rather than the accuser needing to prove that Meta is not complying. Presumption of innocence be damned.

    If it is a result of screenshots, then is this a result of a disconnect between the Online News Act and the Copyright Act (this may have been addressed in the entry above but I didn’t pick up on it)? If yes, would not the Act that is most advantageous to Meta take precedence? After all, if the sentence for a crime is changed from when the crime is committed and when the person is found guilty, the convicted is entitled to be sentenced using the lesser criteria. Should not a similar policy apply here?

  3. Meta should implement a “friends” surcharge on every politician’s and political party’s accounts with the proceeds going to news organizations. For example, every politician and political party on Facebook would be charged $1 a month for every friend they have. Meta could then encourage Canadians to support the news by friending politicians.

  4. Despite Meta’s claims, it clearly is used for news. I know many people who use Facebook as their primary way of following and sharing news. The fact that Facebook censors Canadian news content has facilitated the spread of disinformation and US funded rightwing conspiracies promoting climate change denial and anti-vaccine hysteria but Facebook has been playing this game even before Canada’s Online News Act.

    The Canadian government should do what is necessary and if Facebook continues to censor Canadian content then Brazil’s response to Musk is a good model for how to take on US Tech Bros that think they can flout national laws. US companies rely on Canadians being spineless pushovers but governments around the world and even within the US are realizing the negative consequences of letting these bullies spread their disinformation campaigns with impunity. The lesson here is not to cave in to Facebook. It’s time to take it up a notch. Those who think they can’t live without Meta can buy VPNs.

    • You really don’t seem to understand the playing field here. Meta is not “flouting” any Canadian laws.

      They have ensured that the stupid law called the Online News Act does not apply to them by ceasing all “facilitating” of *Canadian* news content. That stupid law *only* applies to *Canadian* news content so that is why you still see US news on it.

      Is it good for Canadians that they only see American news on Facebook now? Probably not. But that is not Meta’s fault. That is the Canadian Government’s (i.e. Liberals) fault!

      If the Canadian Government doesn’t want to see Canadians being unable to access Canadian news then they need to stop coming up with stupid laws that try to make new, innovating business sectors prop up old dead ones. If the Canadian Government had anything to say about, automobile makers would be paying into a fund to keep horse-and-buggy companies in business.

      • Yeah yeah investigative journalism and the principles of Truth and Accuracy are the horse and buggy while unregulated monopolies that use data surveillance and behaviourist social manipulation techniques to push climate change denial and anti-vaccination conspiracies a la Cambridge Analytica and Facebook are the automobile makers in your utopian scenario.
        Countries with functioning democracies are clearly not going to roll over that easily and you will see more and more like Brazil that put the brakes on US Tech companies. Just because the USA is a hellscape that shredded the Anti-Trust laws that allowed their society to thrive decades ago, doesn’t mean the rest of the world is going to let the US’s unaccountable TechBro Monopolies run roughshod over their national sovereignty. Obviously Canada should have been playing hardball and crafted legislation that did not allow any opportunity for Facebook to try to disingenuously claim they were no longer providing news. This seems like an indication that that loophole will be closed soon. Canadians are infamous for ceding their sovereignty to US corporate interests so maybe a quisling Conservative government can gain power in time to bend the knee again.

        • Anti-US diatribe aside, Meta are still not flouting any Canadian laws. And to be clear, nobody said Facebook was not supposed to be providing any news to be onside with the stupid Online News Act. They are not providing *Canadian* news to stay onside because the Government of Canada did a stupid thing and put a link tax on it.

          And to be clear, the horse-and-buggy analogy applies to the advertising business, not the news business. You see, newspapers are/were in two businesses: journalism and advertising. But they let their model for the latter business stagnate and did not innovate it, so as should happen, somebody came along and found a better way to do it.

          There was nothing preventing the news business from becoming the online advertising giant that Meta and Google are. But they decided to just continue riding along, no doing any innovation and just like any un-innovative business, they should be replaced by innovators.

          Does that mean that independent journalism should go away and die? Of course not. But that business needs to find a new model. Maybe it is government funded, but indirectly, not directly.

          For example, instead of making the government directly fund, and in that way remove the independence from journalism, why doesn’t the government give every Canadian a “news allowance” as some kind of tax rebate, or something, that simply puts credit into Canadians’ pockets that can (only) be spent on news, then let Canadians choose who they want to get their news from and pay that supplier from their allowance?

          • The tax credit idea is not bad, but I see them saying that would can only claim it if they spend it on a Qualified Canadian Journalism Operation. The problem here is the definition and the way it has been implemented.

            For instance, Rebel News was denied, twice, being made a QCJO. The first time for not enough original content (the legislation doesn’t specify a minimum) and the second time for publishing from a single viewpoint. I knew about the first time, but found out about the second from a CBC article. The irony is that the CBC is developing a reputation as being the propaganda arm of the Liberal Party, and the article was a reprint of a Canadian Press article. And even the Toronto Star was designated as a QCJO when it had the stated mission statement of promoting liberal values.

    • First of all, Facebook does not censor Canadian news. They are refusing to publish links to news media sites in Canada; you can still access the news media site if you want. Why would they do this? Because the news media in Canada decided that it wanted to be paid by Facebook, etc, to promote itself on Facebook, etc. Does the news media advertising pay the folks that are advertising in their papers or on their website? No, rather the advertisers pay them. So why should the news media demand payment from Facebook, Google, etc? So what if they are losing advertising revenue. In that case it is the responsibility of the news media to make themselves more appealing as a option for those who buy advertising space.

      Frankly, if you use Facebook as your primary source for news then you need to shake your head; the algorithms create an echo chamber where they are far less likely to present news which doesn’t jive with the profile they’ve made of you. In essence censoring (to use your term) conflicting views.

    • That was Bill C-18 and yes, now we get our “news” in snippets from whosever social media we decide to follow. Not that I trust the CBC, CTV or Global, yet at the same time, do we really want a rebel news station while we guzzle chicken nuggets and drive our monster trucks on the 401 whilst listening?

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  9. It’s really frustrating to see how the Online News Act has led to this standoff between Meta and the Canadian government. Blocking news links feels like a heavy-handed response that ultimately hurts consumers and news outlets alike. Many people rely on Facebook for their news, and this move just limits access to important information.

    I find the definitions in the law quite concerning too. If Meta can claim certain sites aren’t “news outlets” to avoid obligations, it raises serious questions about what qualifies as news in the digital age. And the whole issue with screenshots—it’s wild to think that might fall under the law’s scope! It feels like a gray area that wasn’t even considered when the legislation was drafted.

    The CRTC pushing Meta for answers shows just how frustrated the government is, but it also raises issues about fairness in regulation. It’s like the government is saying, “Prove you’re following the rules,” which flips the usual legal expectation on its head.

    I do think the idea of providing Canadians with a “news allowance” is interesting. It could empower people to support the journalism they value without putting the government in a compromising position. Overall, this situation highlights how tricky it is to regulate big tech while ensuring the survival of quality journalism. It’s a complex challenge that needs careful thought if we want to protect our media landscape!

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