Why the Online News Act is a Bad Solution to a Real Problem, Part One: The Risk to Free Flow of Information


Since its inception in early April, the Online News Act (Bill C-18) has flown under the public’s radar screen. There was a few guest comments and considerable coverage on my blog (I’ve posted here, here, here, here, here, here, here, here and published podcasts on the bill with Sue Gardner and independent digital media publishers Farhan Mohamed and Jeff Elgie), but Canadian Heritage Minister Pablo Rodriguez has largely been content to get the bill through the parliamentary process with little debate. Indeed, after Rodriguez left the CBCs Vassy Kapelos visibly confused, he said little about it. He has never made a speech on the bill in the House of Commons, and the government successfully broke off the debate after being given just two hours to do so. Bill C-18 is now being routed to the Standing Committee on Canadian Heritage, with hearings set to begin as early as this week.

This post is the first in a long line explaining why the bill is a bad solution to a real problem. The series begins with posts that examine some of the details of the bill, including problematic definitions for news delivery, news companies, and even the definition of news itself. Once I’ve laid the groundwork, the series will highlight some of the implications of the bill, including violations of Canada’s international trade, treaty and constitutional obligations; the risk that efforts to combat misinformation will be hampered; and the plethora of market problems it would create related to government intervention, an independent press, competition, and our reliance on Big Tech.

I must preface criticism of Bill C-18 by noting that few dispute the importance of a robust, diverse media sector and the challenges it has faced in recent years in adapting to far greater competition, both locally (Dozens of new digital-first organizations have popped up in recent years) and abroad (services like the NY Times, Washington Post, and many others are actively competing for Canadian subscribers). Changing market dynamics has obviously transformed the digital advertising market as well, with more money pouring into companies like Google, Facebook, and Amazon. The shift has little to do with the availability of news links, but is largely the result of a combination of a better ad model (more accurate information and targeting) and advertisers moving with the audience. In fact, the Emergence of Amazon as the third largest digital advertising platform and the growth of others (soon to include Netflix) underscore the tenuous link between news and digital advertising trends.

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However, given the importance of the sector and the challenges of economic transition, I support government support for the sector. A few years ago, the sector lobbied heavily for and received government support, with hundreds of millions of taxpayers’ dollars poured into programs and tax breaks. The programs introduced – the Local Journalism Initiative, the Journalism Labor Tax Credit and the Digital News Subscription Tax Credit – offer some hope, provided they maintain a neutral, transparent implementation that does not favor old companies over new, innovative services. So far, transparency has been a mistake that required immediate action. But it is relatively early in the process and the government should have been content to let these programs run and then assess the need for further action.

But instead of focusing on programs that have offered hundreds of millions in support, Bill C-18 turns to internet platforms and the argument that there should be fair compensation for the use of journalistic content. While there might indeed be support for a bill that did so, the reality of Bill C-18 is very different. The rationale of the bill is simple: Encourage major digital platforms to negotiate with news organizations over payments for news usage, with the prospect of mandatory arbitration overseen by the CRTC if they fail to reach an agreement. Aside from the fact that most of Canada’s major media organizations already have contracts with these companies for actual usage, the bill stretches the meaning of “usage” well beyond a reasonable standard and creates serious risks, precedents for payments for mere linking with content and its placement jeopardizes the free flow of information on the Internet.

First, it should be noted that the bill does not actually use the word “use,” except for a reference to use within the mandatory arbitration it creates. Instead, the bill triggers a mandatory redress process by which news content is “made available” on internet platforms called Digital News Intermediaries (DNI). These DNIs certainly include Google and Facebook, but could also extend to Twitter, LinkedIn, Apple, and many others. What does it mean to make news content available?

The draft law states in § 2 para. 2:

News content within the meaning of this Act is provided when

(a) the message content or parts thereof are reproduced; or

(b) access to the news content or any part thereof is facilitated by any means, including an index, aggregation or ranking of news content.

The definition of subsection (a) likely fits what most Canadians would think delivery is covered, which is when the platforms reproduce the news content. But even this definition can be too broad. Reproducing an entire article is one thing, but what if the only part that gets reproduced is the headline? What if the only news content played back is a sentence or two from the article? What if artificial intelligence is used to create a two-sentence summary, but the actual text is not rendered? Bill C-18’s definition is “any part of it,” suggesting that even a minimal use, such as a headline, could be treated as providing news content. As discussed further in a later post on copyright, mere links, headlines, or even short blurbs are not subject to copyright protection for news publishers.

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Subsection (b) moves well beyond reproduction into an area that bears little resemblance to use or any reasonable definition of “making available”. It covers to facilitate access to news by any means, an approach found nowhere else in the world. How is facilitating access to news the same as making it available (let alone using it)? A standard for facilitating news access is virtually limitless: newsstands, news screens in elevators or taxis, television manufacturers, or newspaper box makers can all say they facilitate news access. The bill limits its scope to DNIs, but the policy principle that this bill merely compensates for content usage is twisted beyond recognition.

Indeed, it is clear that this extreme approach is exactly what the government intends. By citing examples such as indexing, aggregating, or ranking news content, it is said that virtually anything a platform does – linking to news articles or just to news organizations, indexing content at the request of the news organization (even if the actual content is not openly available like on paywall sites) or creating a list of news articles on a specific topic are all “facilitation of access to news content” that require remuneration.

Would Canadians consent to this link to the Globe and Mail front page using Globe content? When that link appears on Google or Facebook, the government says it does. If someone searches for newspapers in Montreal to learn more about developments in the city, does the list of newspapers in that city use the content? Once again the government says it is. When members of the Standing Committee on Canadian Heritage link to news in their Facebook feeds – Committee Chair Dr. Hedy Fry, MP Lisa Hepfner or MP Peter Julian, to name just three – why is the link subject to compensation? Facebook didn’t post the full article, just a link posted by one of its users, directing prospects to the original source. Why does this “use” deserve compensation?

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The truth is that nobody should pay for the link. As the Supreme Court of Canada in Crookes v. Newton noted, in a case examining links related to defamation:

Hyperlinks are therefore related to the content to which they refer in the same way as references. Both communicate that something exists, but do not inherently communicate its content. And both require an action on the part of a third party before he or she gains access to the content. The fact that accessing this content is much easier with hyperlinks than with footnotes does not change the fact that a hyperlink is intrinsically content neutral – it expresses no opinion and has no control over the content it links to .

The court added:

The Internet’s ability to disseminate information was described by that court as “one of the great innovations of the information age” which “should be facilitated rather than discouraged” . Hyperlinks in particular are an essential part of how it works.

The Supreme Court of Canada was so concerned about the importance of links that when considering possible liability for defamation for a link, it warned: “Given the central importance of hyperlinks’ role to the Internet, we risk damaging its overall functioning.” Bill C-18 does just that. If the government thinks laws are needed to mandate payment for usage of news articles, then they should amend their bill to reflect actual usage in a way most would commonly understand . As it stands now, it is looking for a broad standard to “facilitate access to news”, including through linking. The draft law should be amended to limit making available to actual copying. Without this change, a dangerous precedent will be set that could lead to many other groups claiming compensation for linking to their content and pose a serious risk to sharing information online.





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