The censorship threats brandished by Meta and Google in protest against the implementation of the Online News Act (Bill C-18) provide an opportunity to take a closer look at the purposes of this law which so plagues these companies accustomed to behaving like States. These companies, which pride themselves on protecting freedom of expression, nevertheless have no qualms about discriminating against certain content when their business model is upset.
Like the laws put in place in other countries, the one in question here aims to remedy the structural imbalance that jeopardizes the ability to produce information essential to the functioning of democratic processes. It puts in place measures similar to those that have made it possible to ensure the viability of the production of diversified Canadian content in the electronic media.
The media are an essential cog in the wheel of democracy. Long before the advent of the charters of rights, the Supreme Court explained that the democratic process as it is established in Canada works thanks to the existence of a free press capable of informing in complete independence and of criticizing the measures taken by the authorities. Without the possibility of revealing what the authorities would like to cover up or of criticizing the decisions of people in power, there is no real democracy. The media are part of the deliberative environment that constitutes a democratic society. It is this environment ensuring the availability of spaces for information, discussion and criticism that must be protected. This is what the Online News Act contributes to.
The Yale report on the future of communications in Canada found that Canadians are increasingly accessing news content through online platforms that facilitate the sharing of content produced by other media. By deploying business models that trivialize the viral sharing of texts, images and sounds, online platforms have radically shaken the economic model of the media. Since the beginning of the XXe century, the viability of the media is based on the constitution of mass audiences which can then be valued by advertisers. The generalization of online platforms and the fact that they have become an essential part of access to information has generated a massive shift in income.
By their operation based on the sharing of all kinds of true or crazy information, the platforms capture and value our attention. This restructuring of the mode of access to information has contributed to weakening the media based on the production of content validated according to proven methods.
Megaplatforms such as search engines, social media and other aggregators that collect and value the data generated by our movements on the Internet are now monopolizing the revenues that were once captured by the media. They are in a quasi-monopoly position to enhance the attention that Internet users pay to content, particularly in the advertising market. This means that the revenues go to the platforms, while the expenses necessary to produce the information are assumed by the media.
The erosion of the local media’s funding base has jeopardized their ability to provide effective oversight of the activities of elected officials. It is to this change in the information circulation environment that the legislators of a growing number of States are reacting.
To restore the balance necessary to preserve democratic processes, the Online News Act takes up the approach that for decades has ensured the viable presence of Canadian content on the airwaves. In Canada, regulation of electronic media is based on a model of requiring reinvestment in the production of content that reflects Canadian creativity. For example, distributors of television programming services that derive revenue from, among other things, the distribution of American programs are required to make contributions to the funds earmarked for the financing of Canadian programs. This type of regulation both allows Canadians to access content from all sources and maintains the viability of companies that produce Canadian programming. Without such regulations, it would be practically impossible to have the choice of watching programs created here on our screens.
Similarly, the Online News Act allows some of the revenue generated by Canadians’ activities on online platforms to be re-injected into news production. Such mechanisms for reintegrating part of the revenues derived from the consumption of content into the production of content that meets the needs of reflecting Canadian realities are a major characteristic of the rules of the game that have prevailed for decades in Canada. They restore a balance in a universe where the so-called free market is not able to support content that would reflect Canadian diversity and the realities experienced by local communities, First Nations, Francophones and other minorities. By censoring local media, Meta and Google are censoring what sets us apart.
Professor, Pierre Trudel teaches media and information technology law at the University of Montreal.