The Senate voted for the first time on Bill C-18 last April, at second reading stage. At the time, among the three independent senators who are ex-journalists, two — Senator Pamela Wallin and myself — voted to study the Online News Act in committee. Senator Paula Simons abstained. Two months later, at third reading, my two colleagues voted against the bill. I was the only member of our trio to vote for it — despite considerable, documented doubts.
At that time, my support for C-18 was based primarily on an amendment that I had managed to pass which recognized the value that the media derive from traffic generated by Google and Facebook. The House of Commons rejected this amendment a few days later. When the Senate held its final vote on C-18 — to consider the House’s response to our amendments — my two colleagues voted against it again, and I abstained.
How can we explain that a bill supposed to save journalism found no support among ex-journalists in the Senate?
A flawed premise
During the study in the Senate, problems were identified in C-18: poorly defined exemption criteria, biased arbitration procedures, too broad a definition of eligible press companies, unlimited liability of platforms, etc. Although legitimate, most of these concerns did not seem insurmountable to me, at least at first.
The fundamental problem with the legislation was its premise: that Meta and Google were improperly appropriating news content and taking unfair advantage of hyperlinks to that content. But many of us were skeptical: Do the platforms really profit more from hyperlinks to news sites than the media profit from the traffic the platforms send them? Both sides declined to provide data.
To avoid this uncomfortable assessment and achieve its objective, Bill C-18 proposed a rather radical solution: when negotiating “fair compensation” to be paid to the media, the parties were to consider only one side of the equation. In other words, the value that news companies derive from publishing their hyperlinks on Facebook and Google is presumed… zero.
The draft regulation clarified the matter: “is excluded from [l’indemnisation] any value attributed to the sole fact of making news content available online [c’est-à-dire le trafic induit par un hyperlien vers un site d’information] “. My amendment was intended to correct this anomaly. He specified that “the negotiation process […] aims to determine, on the one hand, the value that each party derives » from the sharing of news links on Google and Facebook and, on the other hand, the portion of this value which will be transferred to the eligible news company “.
In my opinion, this change gave the bill a more realistic foundation. The Senate accepted it.
An ill-advised solution
The other fundamental problem with Bill C-18 was the proposed solution: the obligation to pay to publish hyperlinks. Faced with the same fundamental challenge – how to guarantee the sustainability of independent media in the era of Google and Facebook? —, the European Union has proposed a solution based on expanded intellectual property rights. Several experts recommended another approach, that of an independent journalism support fund, to which the major platforms would contribute.
Both approaches have worked elsewhere. (Google announced last week that it had concluded more than 2,600 agreements with media in 16 European countries.) But the Canadian government was inspired by the Australian model and decided to force platforms to pay for information hyperlinks.
Two problems then appeared. First, this approach violates the fundamental norm of “free hyperlinks,” protected by Copyright Law. Second, this approach gave Meta and Google an easy way to opt out of the C-18 regime, namely to remove news links from their platforms. Meta has already done it. Google signals that it may follow suit.
Where are we heading? No one knows. It is still possible to correct or mitigate some of the bill’s deficiencies in the final regulations, but doing so would require significant changes. Perhaps the federal government will find a way to buy time while continuing its negotiations with Google. Perhaps a compromise can be found.
However, it is difficult to see how the regulations could modify the fundamental principles of Bill C-18. The current situation is very worrying for Canadian journalism — disappearance of information links on Meta and (possibly) on Google, no new funds for the media, significant drop in traffic. The government may have no choice but to apply C-18 creatively, secure an exemption for Google, or, as a last resort, change the law.