Ivana Peloza is a 3L JD Candidate at Osgoode Hall Law School. This article was submitted as a requirement for Prof. Pina D’Agostino’s IP Intensive Program.
Bill C-18, the Online News Act, which was introduced by the Minister of Canadian Heritage in April 2022, seeks to ensure that news outlets are fairly compensated for their news content by digital platforms. The bill establishes a framework for bargaining and negotiation between dominant digital intermediaries (DNIs), like Google and Meta-owned Facebook, and eligible news businesses.
Bill C-18 authorizes the CRTC to initiate mandated arbitration between an eligible news business and a digital platform or group of digital platforms. Under Section 53 of the Act, the CRTC has the power to compel commercially sensitive and undisclosed editorial material from eligible news businesses under Bill C-18. Section 58 outlines the CRTC’s power to order production of any record, report, electronic data or other document. If the operator or eligible news business fails to provide all assistance that is reasonably required for the CRTC to exercise their powers and perform their duties, the DNI or news business is in breach of subsection 3 of this section.
The CRTC has emphasized that the bill’s market-based approach is designed to maximize transparency and minimize government involvement. According to the Parliamentary Secretary to the Minister, the promise of minimal government intervention is ensured by the exemption order outlined in Section 11(1) of the bill. While this criteria may incentivize voluntary commercial agreements, it does not exempt the parties of these pre-existing agreements from the duty to provide information under section 53 or the CRTC’s power to order production.
Advocates and critics of Bill C-18 agree that the Canadian news market is in dire need of long-term structural supports in a rapidly evolving digital age. What they disagree on, however, is whether the Online News Act is a solution or a threat to that cause. Harsher critics of the bill, for instance, have suggested that Bill C-18 actually poses a more significant threat to the news industry and Canadian democracy press; it gives the government and its regulator dangerously vague powers to intervene in the news sector.
Without a thriving news industry and robust protection of ethical journalism, the foundations of Canadian democracy are jeopardized. There is, regrettably, no entirely harmless solution – to at least some or certain stakeholders and journalistic entities. While there are recommendations that must be considered in regulations, such as an amendment to designate a section of legislation – if not an entirely separate Act within the bill – and a regulatory body to consider the eligibility of freelance journalists and start-up news outlets, to take an anti-regulatory stance is a defeatist approach. Given the nature of how content is generated and the interconnectedness around the world, it’s easy to forget that digital content is not accessible everywhere and to everyone. Forcing entities to enter into negotiations for the sustainability of the larger news ecosystem, therefore, is a more worthwhile approach than attempting to enforce existing (and failing) initiatives such as subsidies and tax measures, or worse yet – doing nothing at all.