The Senate committee studying Bill C-11 has ramped up the hours devoted to clause-by-clause review with amendments related to user generated content currently up for debate. However, earlier today, just prior to addressing the user content issue, the committee shockingly adopted an amendment that adds age verification for online undertakings to the Broadcasting Act. The amendment comes as a policy objective, meaning that it will fall to the CRTC to determine how to implement it. The implications are enormous since broadly defined the policy would require every online service that transmits or retransmits programs over the Internet (broadly defined to include all audio and audiovisual content) to establish age verification requirements to prevent child access to programs with explicit sexual activity. If the CRTC implements, the policy will surely be challenged as unconstitutional.
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How the Government Is Using Bill C-18 to Pick Media Winners and Losers
Canadian Heritage Minister Pablo Rodriguez’s claim that Bill C-18, the Online News Act, was a hands-off approach was never really credible, but the clause-by-clause review of the bill has taken the government picking media winners and losers to another level. It was always readily apparent that the bill represents an unprecedented government intervention into the Canadian media sector with the extensive power wielded by the CRTC as it sets regulations and the ground rules for the mandatory arbitration process. Further, the Parliamentary Budget Officer’s estimate on the benefits that might arise from the bill – hundreds of millions of dollars of which more than 75% would go to broadcasters such as Bell, Rogers and the CBC – provided a reminder that there was big money involved of which relatively little would go to the newspaper sector.
In recent weeks, however, the government’s role in picking winners and losers has become even more pronounced. Liberal MP Lisa Hepfner’s ill-advised comment that online news outlets weren’t real news was rightly criticized (leading to an apology and near total silence from Hepfner ever since) but skeptics feared she was merely saying the quiet part out loud since the reality of Bill C-18 is that it is the lobbying product of large media outlets, who are set up as the prime beneficiaries.
Money for Nothing: Government Quietly Expands Bill C-18 Eligibility to Broadcasters That May Not Even Produce News Content
Later today, the Canadian Heritage committee will continue its clause-by-clause review of Bill C-18, the Online News Act. The committee is virtually certain to expand the eligibility of news outlets, responding to concerns that the current criteria may exclude smaller, independent outlets from benefiting from the bill’s mandatory payment/arbitration system. However, earlier this week, just as the committee was hearing that the bill covers quotes with links to news content by users in Facebook posts, it quietly expanded the scope of the definition of “eligible news business” in a manner that opened the eligibility door to some organizations that may not even produce news content. As a result, the bill faces another potential trade challenge as it evolves into a straight subsidy model in which the bulk of the payments go from Internet companies to Canadian broadcasters with little regard for value or any notion of actually use of news content.
A Tale of Two Readouts: U.S. Escalates Trade Concerns With Canadian Digital Policy as Canada Seeks To Downplay the Issue
Canadian International Trade Minister Mary Ng and U.S. Trade Representative Katherine Tai met yesterday to discuss Canada-U.S. Trade issues and concerns regarding Canada’s digital policy – most notably a proposed digital sales tax and Bills C-11 and C-18 – continue to mount. The U.S. raised digital policy concern over the summer, specifically citing Bill C-11 with a reference to “pending legislation in the Canadian Parliament that could impact digital streaming services.” The latest readout suggests that the concerns are growing, as the U.S. now cites both Bills C-11 and C-18 by raising “pending legislation in the Canadian Parliament that could impact digital streaming services and online news sharing and discriminate against U.S. businesses.”
Freedom of Expression for a Price: Government Confirms Bill C-18 Requires Platform Payment for User Posts That Include News Quotes and Hyperlinks
The longstanding debate over whether Bill C-18, the Online News Act, requires payment for linking came to an end yesterday. Government officials admitted that even basic quotes from news articles that include a hyperlink to the original source would scope user posts into the law and require platforms such as Google and Facebook to negotiate payment for the links. As noted below, even that position may understate the impact of the bill, which appears to also cover a user post of a news quote without a link. In other words, merely quoting a few sentences from a news article on an Internet platform is treated as making news content available, which triggers a requirement for the platforms to negotiate payment. This position runs counter to Canada’s copyright obligations under the Berne Convention and has no place in a country committed to freedom of expression.
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