Bill C-18: Compared To The Australian Model

I thought C-18 follows the Australian model, but the more I look at it, the less I know what this bill means for Canadians. I understand that the CRTC (a federal entity) now has a new jurisdiction to make up criteria for provincial businesses and local matters, which appears unconstitutional, or as Facebook has pointed out excessive and ultra vires. I don’t want to agree with Facebook, but the bill needs a serious redraft. As of now, the only way to comply with the bill is to block all news sharing from social media or to make sure your site never gets “captured” under the Act. Otherwise, the Bill could also be construed as government overreach. I am not going to spend any more time on this bill. Some people foresee that Canadians will be locked out of all news and are already setting up VPN’s. I think it is too early to tell. I don’t think it is worth investing in a VPN to read news, but it can always come in handy to watch American streaming services, so go for it. CRTC is yet to tell us what is what.

Key elementsAustralian News Media Bargaining CodeCanadian Online News Act
ApplicationThe Minister designates digital platform corporations that have a significant bargaining power imbalance with news media, at the Minister’s discretion.Quantitative criteria are set in Governor-in-Council (GIC) regulations to determine which Digital News Intermediaries (DNIs) and Digital News Intermediary Operators (DNIOs) are captured under the Act. DNIs that meet the criteria published in GIC regulations notify the Canadian Radio-television and Telecommunications Commission (CRTC) and must comply with the Act. GIC regulations and their application by the CRTC ensure greater independence from political influence, allowing for more transparency in the process of establishing and applying criteria.
ExemptionCorporations not designated by the Minister are exempt from the code. Corporations may not be designated if they have made a significant contribution to the sustainability of the Australian news industry through commercial agreements that remunerate news businesses for news content, at the Minister’s discretion. Once exempted, platforms are free from any regulatory oversight.The CRTC can consider exempting a DNIO from parts of the Act, if a DNIO that is captured under the Act has applied for an exemption. The CRTC’s decision to exempt must be guided by s. 11 of the Act and the criteria set in GIC regulations. The public will have an opportunity to be heard, potentially through a public hearing or the gathering of written submissions. Once exempted, platforms remain subject to key elements of the regime, such as regulatory tools and information sharing provisions, to ensure the criteria for exemption are being met on an ongoing basis. The CRTC may also reassess its decision of an exemption as it deems necessary.
Regulatory toolsNon-discrimination provisions prevent designated platforms from discriminating against news publishers.The CRTC will develop a code of conduct to support fairness and transparency in the bargaining process when it happens under the Act. The code will ensure negotiations are performed in good faith and that both parties make informed business decisions. Undue preference provisions prevent platforms from engaging in conduct that unduly preferences or disadvantages a news business, both during the bargaining process when it happens under the Act and after the deals have been reached outside the scope of the Act.
Information sharingInformation is generally shared between parties, however, the ACCC has information-gathering powers for the purpose of enforcement and record keeping. A set of minimum standards for bargaining also requires designated platforms to provide advance notice of algorithm changes likely to affect news businesses as well as information about the data collected by platforms.The Act contains information-sharing provisions that compel DNIOs to provide the CRTC with information it requires for the purpose of exercising its powers as specified under the Act. Similarly, the CRTC must provide information to the Minister or the GIC that is necessary for performing their duties under the Act.
Other transparency measuresThe Australian Communications and Media Authority (ACMA) must publish details of each registration and endorsement on their website. A written report must be provided to the Minister and the Communications Minister. The Minister must ensure that copies of the report are available for public inspection.The Commission must publish a list of DNIs/DNIOs, a list of eligible news businesses and reasons and orders for exemption and interim exemption on its website. The CRTC will be required to hire an independent auditor to prepare an annual report of aggregate data on the value of commercial agreements to provide the public with a measure of the impact of the legislation on the Canadian digital news marketplace. Other transparency measures include clear and objective criteria for application and exemption and transparency in bargaining through the code of conduct to ensure parties have the proper information to make informed business decisions