The federal government still seems shocked and a little bit hurt that the “tech giants” are carefully obeying the letter of their new Online News Act instead of pumping millions of dollars into government-favoured media outlets. How dare Alphabet and Meta obey the law we wrote? We wanted to soak them for bribes subsidies to give to legacy corporations who can be depended upon to cheerlead our agenda!
Blocking of news links on Facebook and Instagram in Canada has becomes increasingly widespread in recent days, leading to a growing number of public comments from media outlets and reporters expressing surprise or shock about the scope of the link blocking. Indeed, outlets with blocked links include university student newspapers, radio stations, and foreign news outlets. While there may have been some errors (Facebook has a page to seek review of any blocked link decision), the inclusion of a very wide range of Canadian and foreign news outlets is no accident. Rather, it reflects the government’s Bill C-18 approach, which effectively covers all news outlets worldwide whose links are accessed in Canada. The Canadian government could have adopted a more targeted approach – for example, limiting the scope to news links from those news outlets eligible to negotiate agreements with Internet platforms under the law – but it instead went for the broadest possible approach that includes foreign news outlets with little or no connection to Canada.
Understanding why Bill C-18 covers news links from outlets who are not “eligible news businesses” under the law requires unpacking several provisions. First, start with the definition of a “digital news intermediary”, which states:
digital news intermediary means an online communications platform, including a search engine or social media service, that is subject to the legislative authority of Parliament and that makes news content produced by news outlets available to persons in Canada. It does not include an online communications platform that is a messaging service the primary purpose of which is to allow persons to communicate with each other privately.
This definition is critical since the only companies that are subject to Bill C-18’s requirement to negotiate agreements with news outlets are (1) those that qualify as DNIs under this definition and (2) meet the requirements found in Section 6 on a significant bargaining power imbalance. The absence of significant bargaining power imbalance is why companies such as Twitter, Microsoft or Apple are not subject to the law. That leaves Google and Meta, provided that they qualify as DNIs. The key phrase in the qualification requirement is that the companies “make news content produced by news outlets available to persons in Canada”. If the companies do not make news content produced by news outlets available to persons in Canada they are not DNIs and are not subject to the law.
[…]
… the government’s choice was to try to bring Meta and Google into the scope of the law by virtue of any news links to any news outlet anywhere in the world, even if those outlets have nothing to do with Canada or with the Bill C-18 system. Given Meta’s stated goal of complying with Bill C-18 by removing links to news content that would render it a DNI, the government’s legislative choice of covering all news links from all news outlets therefore effectively requires it to block all of those news links.
It takes a lot to make Google, of all companies, a sympathetic victim … yet Canada’s awesomely awful Liberal government aced it. Bananada strikes again!
