The Canadian legislation designed to force Big Tech platforms to negotiate commercial deals and pay news publishers for their content has cleared two hurdles yet faces a new snag.

The two cleared hurdles for Canada’s Online News Act are: 

• The House of Commons has accepted amendments passed by the committee.

• The bill has been passed along to the Senate where it is being debatedin its third reading. 

News publishers are optimistic about its chances since the Senate rarely votes down a bill that has cleared the House. Ryan Adam, Torstar’s vice president/government and public relations, told INMA: “It is anticipated that C-18 will be making its way through the Senate and committees and back to the House for harmonisation and Royal Assent in the spring legislative session.”

The bill hits a snag

Yet the path toward passage has hit a snag, and the outcome, regardless of the Senate’s decision, is unclear.

In March, the Standing Committee on Canadian Heritage, which has been a key proponent of the bill, summoned four Google executives for testimony. Ministers of Parliament (MPs) on the committee unanimously supported the motion.

The issue was a five-week test Google ran that left a random sample of around 4% of its Canadian users without access to its news product. The purpose of the test, according to Jason Kee, Google public policy manager and a subject matter expert on search, news and ads, was to examine scenarios that might happen if the bill passed and Google decides to cut off news access via Search and Discover for all Canadians. It did not inform users in advance.

In May, with the impending passage of the bill, both Meta and Facebook said the future of the relationship between the platforms and news media outlets is grim unless C-18 is changed or defeated. “If that doesn’t happen, Google warned it might cut its existing deals with Canadian publishers as it mulls pulling news content from its search engine entirely. Meta says its ready to block news on Facebook and Instagram if the bill is passed, which could happen within weeks,” the Toronto Star reported.

For those unfamiliar with what that would look like, in Australia, Facebook blocked news publishers and users from sharing or viewing all local and international news content, which also meant anyone outside the country was unable to see or interact with and Australian news. Information posted by government agencies and non-profit groups, government health information and pages for some emergency services were relegated to the same fate, although Meta Canada’s head of public policy, Rachel Curran, told the Heritage committee that “those errors will not be made in the Canadian context,” the Star reported.

“Users could see warnings pop up on their accounts if they tried to share news, and posts could be removed from news pages,” the Star continued.

Further, a Google executive told senators in May that if the government pushes ahead with the bill, Google could cut or end existing deals with Canadian news outlets, the National Post reported.  Although the terms and value of the agreements have not been revealed, more than 150 publishers have already signed with Google for its News Showcase, according to a Google blog post. These publishers include Torstar, The Globe and Mail, Black Press Media, Postmedia, and Le Devoir.

Why the opposition?

Neither Facebook/Meta nor Google have been silent about their opposition to the bill. In part, that’s because of its similarities to, as well as its differences from, Australia’s News Bargaining Code. Australia’s code has had major repercussions in the way other countries are thinking about the challenge of Big Tech overreach. If the bill passes, Canada will be the second country to enact such legislation. 

Like Australia’s code, publishers in Canada would be allowed to negotiate collectively, and tech giants would be threatened with arbitration if deals are not struck. 

But Kee noted in his March 10 testimony before the committee: “After a spirited debate, the Australian Government recognised the concerns that had been raised and revised the Code so it would only apply to the platforms designated by the government, with designation taking into account the totality of a platform’s contribution to the news industry. It then encouraged voluntary commercial agreements between platforms and publishers. The Australian Code has never been applied to any platform and its provisions remain untested.”

Nonetheless, Canadian legislators have learned from Australia’s experience. Paul Deegan, president and CEO of Canada’s national press association, News Media Canada, told INMA: “C-18 improves upon the News Media Bargaining Code in several ways,” saying it:

• Is less political: “With C-18, the determination as to which digital platforms are subject to the Act and whether negotiations have been sufficient to avoid the need for arbitration is made by the regulator (the Canadian Radio-television and Telecommunications Commission) — rather than by a minister.“

• Drives editorial investment: “C-18 ensures that an appropriate portion of the remuneration will be used by the news business to produce news content. No such provision is included in the Australian legislation.”

• Is more transparent: “Non-confidential, aggregate information about the effect of the legislation on news media will be published in an annual report by the regulator.”

Torstar’s Adam said: “In Australia, there were concerns that smaller publishers would be left out of the deals or receive a small amount per report. … We, as an industry, are hugely concerned about small publishers closing their doors in areas where there is little to no coverage, and so we are pleased to see C-18 address this issue head on.” 

Google’s preferred solution

Google has maintained the bill would prevent its search engine from prioritising legitimate news sources, that it too broadly defines the notion of an “eligible news business,” and that it would unfairly mandate payments for sharing links to news stories.

Sabrina Geremia, vice president and head of country for Google in Canada, added: “The exemption and eligibility criteria have shifted so significantly that it would require subsidies for media companies even if they don’t produce news, even if they’re not online, and regardless of whether we link to their content.”

According to an article in the National Post, Richard Gingras, Google’s vice president of news, told members of parliament that Bill C-18, as written, “would make Canada the first country in the world to put a price on free links to Web pages, setting a dangerous precedent that is contrary to the long-term interests of both Canadian readers and Canada’s independent press.

“There is no clearly defined commitment to a code of ethics for eligibility, which threatens the standards of journalism in Canada,” Gerermia said. “Unreasonable timelines and unfair arbitration provisions have been added that ensure any reasonable offer from platforms would be rejected, creating a framework for bad faith bargaining. … Under C-18, platforms would be subject to uncapped financial liability merely for providing free links to the news Canadians are searching for.

“This bill is no longer about supporting journalism,” Geremia said.

One solution Google touts in response to C-18 — and to which it would be willing to contribute — is a digital fund that would pay publishers indirectly. Similar to the Canada Media Fund, it would support both large and small publishers, reported The Canadian Press.

McGill University’s Sue Gardner of the Max Bell School of Public Policy agrees because:

• “It would remove the false ’unfairness’ premise, which is important both for reasons of basic intellectual honesty, and also because we wouldn’t then be on a slippery slope where ordinary Internet linking risks being viewed (and enshrined in law!) as ‘taking value.’”

• “It would not hand over to Silicon Valley tech giants’ enormous ability to shape and control the Canadian news landscape.”

• “It would create a mechanism enabling the government to pursue actual policy objectives supporting an informed citizenry.”

The response to Google’s test

Although news publishers and politicians alike were indignant over the Google test, it was clear there would be resistance. 

Reuters reported Prime Minister Justin Trudeau, whose Liberal government introduced the bill last year, said: “’It really surprises me that Google has decided that they’d rather prevent Canadians from accessing news than actually paying journalists for the work they do. I think that’s a terrible mistake, and I know Canadians expect journalists to be well paid for the work they do.”

Conservative Senator Paula Simmons suggested Google’s tactics will backfire: “If Google had just came out and said, ‘This is bad legislation, and we’re withdrawing [from Canada],’ I think a lot of Canadians would have blamed the government. But I think by doing it this way, ironically, I think the government will get more sympathy.”

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