The first post in this series on Bill C-18, the Online News Act, focused on the problematic approach of what constitutes “making news content available” as it encompasses everything from indexing to linking to news without the actual text to reproduce. The approach poses serious risks to the free flow of information online, and extends the law well beyond what could be reasonably expected of “exploiting” news articles. But the problems with broad definitions in the bill are not limited to the “making available” provision. Bill C-18’s definitions of ‘news content’, ‘news business’ and ‘news agency’ are also exceptionally broad and raise a number of concerns of their own.
Message content is defined in the draft law as “Content – in any format, including an audio or audiovisual format – that reports on, examines, or explains current topics or events of public interest.” The definition of “news content” is essential as the application of the whole system is based on the delivery of news content. But the bill is broad enough to cover content well beyond the journalism the government is said to be seeking to support. For example, there is no reference to journalism (professional or otherwise), suggesting the bill could be used by bloggers, or just about anyone reporting on content affecting events of public interest. There are no quality standards and the definition includes opinion pieces rather than reportage.
Furthermore, the definition in the French version of the bill does not even match the English version. The French version defines news content as “Contenu – quel qu’en soit le support, notamment audio ou audiovisuel – qui rend compte de tout enjeu ou événement actuel d’intérêt public, l’explique ou fait suite à une enquete sur un tel enjeu ou événement.” The main difference concerns the audio or audiovisual formats, with the English version using the word “including” of such content and the French version using the word “notamment”, typically meaning “in particular” or “in particular”. Does the government intend to prioritize audio or audiovisual content when defining news content? Which version is correct?
Assuming that issue is resolved, the larger issue that arises when one compares Bill C-18’s sparse definition of internet platforms to pay for linking to all types of content with that used in the Income Tax Act Specificity for produced news content by Qualified Canadian Journalism Organizations (QCJO). The goal of these respective programs is very similar, with Canadian journalism being supported either through tax credits (the Income Tax Act/QCJO model) or through compensation from internet platforms. But while platforms are expected to potentially pay for links to blog posts and opinion pieces, the government only offers a news content tax credit under much stricter criteria. The general definition in the Income Tax Act, supplemented by the Canada Revenue Agency, excludes much of the content covered by Bill C-18:
An organization’s original news content generally refers to a report, feature, investigation, profile, interview, analysis, or commentary that:
B. written, researched, edited and formatted by and for the organization;
C based on facts and multiple perspectives actively pursued, researched, analyzed and
i.e. explained by a journalist from the organization; and
e. created according to journalistic procedures and principles.
There is nothing of the sort in Bill C-18. Additionally, the CRA adds a full analysis of what constitutes original news content, presumably with the intention of ensuring that government policies incentivize quality journalism and not low-quality clickbait:
The term original news content includes content that is researched, written, edited, and formatted by and for the organization. Therefore, whether news content is original depends on a journalist’s active involvement in its creation. Original news content is created by gathering facts and should show first-hand evidence of reporting such as independent research, interviews and fieldwork. For example, a news article or report on an event would be original if it was written or reported by a journalist and is based on first-hand knowledge that the journalist has gained through independent research, attending or witnessing the event, or interviewing organizers, attended or witnessed the event.
Rewriting, translating, duplicating, or summarizing news from outside sources (including articles from news outlets, a current or previous edition of the same publication, or any other publication) will not be considered original. Content produced in this manner by or for an organization will be considered when determining whether the organization is involved in the production of original news content.
In addition, lightly edited reproductions of news content would not be considered original news content. For example, an article that repeats material from a press release with no evidence of further independent research and no additional facts, third party perspectives, or context would be considered original news content.
Original news content should be based on journalistic processes and principles, including:
a. a requirement to research and verify information before publication;
b. a consistent practice of providing those who are criticized with an opportunity to refute and present alternative perspectives, interpretations and analysis;
c. an honest account of the sources; and
i.e. a practice of error correction,
but not included:
e. solicitation, design or production of advertising;
f. advertorials, sponsored content, branded content (any content where a third party, advertiser or business partner is involved in the development of the concept or directs or gives final approval to much of the content);
G. Stories produced primarily for commercial, corporate or institutional purposes; or
H. Editing content that is collected or produced wholly or primarily by algorithms or by aggregation software.
Content acquired, created, used, or presented in a manner that contravenes journalistic practice and principles (e.g., plagiarized content) is not considered original news content.
None of this appears in Bill C-18, which contains no real standards or limitations. In other words, while the government has established a detailed, targeted system to support journalism in the Income Tax Act, the Online News Act has all the hallmarks of a money grab with few restrictions, safeguards, or attempts to limit compensation to journalistic news content. This is a clear political decision by Canadian Heritage Minister Pablo Rodriguez, as the QCJO approach could have been used as a standard. The conscious decision to expand the definitions means that organizations that would not qualify under the QCJO standard because they do not produce qualifying news content would still easily qualify under Bill C-18. This creates a strange set of incentives that encourage the mass production of low-quality, low-standard content that generates mandated payments from internet platforms, as opposed to incentivizing high-quality, original, professional journalistic content.
The definitions for “news business” and “news agency” aren’t much better. The news business is defined in Bill C-18 as “a natural or legal person who runs a news agency.” News agency is then defined as “a company or any separate part of a company, such as a B. a section of a newspaper whose main purpose is to produce news content”. In summary, any company whose primary purpose is the production of (broad) news content is considered a news company.
With a low Canadian threshold for eligibility (employing two Canadian journalists and editing or designing content in Canada), the broad definitions deviate from the QCJO standard and Open the Bill C-18 door to any organization, anywhere, as long as they meet the eligibility criteria. Combined with the facilitating access standard covering linking and indexing, and defining news content with no standards or links to journalism, Bill C-18 seemingly encourages global forum shopping, with Canada becoming home to several internet platform lawsuits. There are obvious fixes, including a QCJO standard for news content and a deeper Canadian connection for news companies, but there’s little sign that the government is interested in getting this right. Indeed, few may care if the platforms are paying higher bills, but the approach has little to do with addressing concerns about the health of Canadian journalism and the news sector.