Evidence of meeting #43 for Canadian Heritage in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was journalism.
A recording is available from Parliament.
Conservative
The Vice-Chair Conservative John Nater
I call this meeting to order.
Welcome to meeting number 43 of the House of Commons Standing Committee on Canadian Heritage.
Obviously, I am not Hedy Fry; however, I'm pleased to take the chair in her stead until she gets here.
As luck would have it, I see that Dr. Fry has just joined the meeting, so why don't I turn the floor over to Chair Fry?
The floor is yours.
Liberal
The Chair Liberal Hedy Fry
Thank you very much, John, for pulling that out for me.
Sometimes in the deepest, darkest wilds of Vancouver here, we have a miss when we try to connect in any sort of way with the Wi-Fi, but I'm on now, so there we go. Thank you.
Good morning, everyone. I apologize for being late trying to get onto this sort of contraption.
I call this meeting to order.
Welcome, everyone, to meeting number 43 of the House of Commons Standing Committee on Canadian Heritage.
I want to acknowledge that this meeting is taking place on the traditional and unceded territory of the Algonquin Anishinabe people.
Pursuant to the order of reference adopted by the House on Tuesday, May 31, and the motion adopted by the committee on Tuesday, September 20, the committee is meeting on the study of Bill C-18, an act respecting online communications platforms that make news content available to persons in Canada.
Today's meeting, of course, is taking place in a hybrid format, again, pursuant to a House order of Thursday, June 23.
Members attending in person in the room know how to use the interpretation and how to get the translation. For those of you attending virtually, interpretation is at the bottom of your screen. There is a little globe. Press it and you will get English or French, depending on what language you want to use.
I want to make a few comments for the benefit of the witnesses and members.
Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon when you wish to speak, and then mute yourself when you're not speaking. For those of you on Zoom, you know how to use it. Again, at the bottom of the screen, there is interpretation. There is a “raise hand” function if you should have a need to use it. I remind everyone that all comments should be addressed through the chair.
In accordance with our routine motion, I am informing the committee that all witnesses have completed the required connection tests in advance of the meeting.
I want to welcome our witnesses here. The first witness we have is Jen Gerson, co-founder of The Line and independent journalist. We then have Michael Geist. We then have Rod Sims, professor at the Crawford School of Public Policy, the Australian National University, and he is on by video conference. We have Hebdos Québec and Benoit Chartier, chair of the board, by video conference; and Sylvain Poisson, general manager, by video conference. From The Logic Inc., we have David Skok, founder and chief executive officer. From News Media Canada, we have Paul Deegan, president and chief executive officer; and Jamie Irving, chair.
I will begin by giving each one of those people who I have named five minutes. After that, there will be a question-and-answer session.
Please begin, Ms. Gerson.
Jen Gerson Co-founder of The Line and Independent Journalist, As an Individual
Thank you very much.
First, I would like to thank the committee for inviting me to speak. My name is Jen Gerson and I have worked in media for more than 15 years in newsrooms across the country, including at the Toronto Star, The Globe and Mail, the Calgary Herald and the National Post. As a freelancer, my work has appeared in The Walrus, Maclean's, The New York Times and The Washington Post, among other places.
At the moment, my co-founder Matt Gurney and I run a Substack-based newsletter called The Line, which publishes Canadian commentary. There, I have published several pieces by me and other writers, explaining my many concerns with Bill C-18.
The first major problem that I have with this bill is that it is predicated on a lie. The bill adopts a very ancient complaint of newspaper publishers that aggregation-based news websites and social media networks are unduly profiting by “publishing” our content. However, we know this isn't true. In fact, the value proposition runs in exactly the opposite direction. We publishers are the ones who benefit when a user posts a link to our content on Facebook, Twitter and the like. This free distribution drives traffic to our websites, which we can then try to monetize through subscriptions and advertising.
This is why major media organizations encourage link sharing below all articles. It's why they have spent untold sums on maximizing SEO and it's why they literally spend money with digital news intermediaries to boost stories on these platforms.
If you need evidence that many of these digital news intermediaries are more valuable to publishers than the other way around, we need only look to the existence of this bill in the first place. Negotiations are sustainable when the outcome of those negotiations serves the interests of all parties involved. If that were the case here, there would be no need for the federal government to oversee these deals. Digital news intermediaries would be happy to negotiate for the use of our content, because they would perceive value out of that deal. Instead, I suspect that what we see here is a form of rent-seeking behaviour in which struggling media corporations are using every last iota of their dwindling financial and social capital to lobby for subsidies and regulations like Bill C-18.
I fear that Bill C-18 is going to backfire spectacularly, undermining the very problems that it is trying to fix. For example, if organizations like Facebook, now Meta, respond to this legislation by simply restricting access to mainstream news articles on their site—as the company has openly threatened to do—who do you think is going to be most harmed by that decision? Facebook? No. It will be Canadian publishers that are harmed by losing access to a major distribution hub.
When that happens, do we think that removing news links from Facebook or Twitter will somehow create a digitized version of the glory days in which Canadians begin their mornings by loyally logging in to their local newspapers, or are we risking the opposite effect? Would it strip mainstream media content from the websites and social media platforms where more Canadians live their online lives? I fear the latter outcome.
If you make it costly for digital news intermediaries to publish mainstream news content, they're going to make the very obvious financial choice. That is, they are going to distribute less mainstream news content, pushing more and more Canadians into semi-private information silos on places like Discord, Telegram, Slack and Signal. These are platforms that the federal government has little hope of regulating in this fashion.
My second major concern is that the more the federal government tries to help the media, the more it risks hurting our credibility. I respect that Bill C-18 has attempted to create a framework that avoids a direct subsidy, but this is not a neutral, market-based approach.
When the federal government tries to save the media, the media becomes a legitimate target for partisan attacks, which undermines our fundamental democratic role and function. We saw a few examples of that this very week, with the leader of the official opposition, Pierre Poilievre, raising money off Parliamentary Press Gallery reporter, David Akin. Poilievre also took potshots at another journalist, Dale Smith, on Twitter. These attacks on media are strategic and they are popular. Journalists are not well liked by the general public, who have a negative opinion of a press corps that is perceived to be on the take.
I'm going to point to a Reuters Institute 2022 digital news report that noted that the “trust in the Canadian news media has sunk to its lowest point in seven years”, which is a continuation of a long-term downward trend.
The opposition leader has, therefore, concluded that attacking us benefits him, and I don't think he's wrong in that calculation. To that end, I have real concerns about making media outlets dependent on revenue that is subject to the whims of the government in power. A future government—say, one led by Mr. Poilievre—will have no compunctions about undoing Bill C-18 and other subsidies. The industry's dependence on these revenue streams makes us pawns of partisan politics, whether we would wish to be or not.
My last beef with Bill C-18 is that it will inevitably favour incumbent media players over innovative models, small outlets and news start-ups.
We saw, for example, that when a similar bill was enacted in Australia, the biggest beneficiaries were Rupert Murdoch-owned entities.
The last point is that the appropriate mechanism by which the federal government should be dealing with issues like misinformation and disinformation in the media is through the CBC, not through creating an entirely separate legislative framework.
Thank you.
Liberal
The Chair Liberal Hedy Fry
Thank you very much.
I now go to Michael Geist.
Dr. Geist, you can begin. You have five minutes, please.
Dr. Michael Geist Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
Thank you, Chair.
Good afternoon. My name is Michael Geist. I'm a law professor at the University of Ottawa, where I hold the Canada research chair in Internet and E-commerce Law, and I'm a member of the Centre for Law, Technology and Society. I appear in a personal capacity, representing only my own views.
With the start of the Jewish new year about 48 hours away, I want to begin by thanking the committee for planning to look into the funding of an anti-Semite as part of Canadian Heritage's anti-hate program. I want to urge you to fully investigate how this happened and to ensure that it never happens again.
With respect to Bill C-18, as you may know, I've been fairly critical, but that criticism doesn't stem from doubts about the importance of a robust, diverse news sector. That success is critically important to ensuring an engaged, aware citizenry and to holding our democratic institutions to account. Rather, I have concerns about the method. I have spoken positively about the government's tax-focused programs, and I would back mechanisms—
Liberal
Chris Bittle Liberal St. Catharines, ON
Madam Chair, as a point of order, just for the translators, I think there's some poor audio quality coming through. I'm getting a thumbs-up from the translators.
Liberal
The Chair Liberal Hedy Fry
I shall pause, then.
Dr. Geist, will you begin again? You have three minutes and 52 seconds left.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
My concern with Bill C-18 is with respect to how it's framed and drafted. I have limited time, so let me highlight four issues.
First, the approach to the use of news articles extends far beyond what a reasonable person would consider “use”. Subclause 2(2) covers both reproduction of any portion of a news article and facilitating access to news by any means. The first part means that even reproducing a headline or sentence summary is covered, even though that form of use is freely permitted by copyright quotation rights under the Berne Convention.
The second part means that linking or indexing to the front page of a news site, not even to an article, is treated as compensable activity. That just can't be right. Treating mere linking as a thing of value requiring compensation—
Liberal
Lisa Hepfner Liberal Hamilton Mountain, ON
On a point of order, Madam Chair, I think there is something wrong with the feed. I see that Dr. Geist is frozen, and I believe there's also an issue online. Maybe we can check with the clerk.
Liberal
The Chair Liberal Hedy Fry
I shall pause again and ask the interpreters and the clerk to double-check, please.
I will move then from Dr. Geist.
Dr. Geist, you still have two minutes and 50 seconds, so I will give you that if you come back after the next speaker.
Professor Sims, please begin.
Rod Sims Professor, Crawford School of Public Policy, The Australian National University, As an Individual
Thank you very much.
Thank you for the invitation to speak today, and greetings from Sydney.
My key message is that, based on the Australian experience with its news media bargaining code, Bill C‑18 should be strongly supported. I'm going to devote my introductory comments to explaining some aspects of the Australian code and addressing a couple of criticisms of the Australian code.
The code's objective was to address the massive imbalance in bargaining power between Australia's news media businesses and the platforms. Google and Facebook do need to have news on their platform to maximize user attention and so enhance their advertising revenue on which they depend, but they do not need the content of any particular news business. On the other hand, each media business needs to be on the platform.
This bargaining imbalance—or market failure—means commercial deals cannot be done. They simply cannot be done to achieve fair payment for the benefit the platforms gain from news media content on their platforms. The outcome is less journalism.
Now, journalism benefits society in many ways, even for those who don't access it. It holds the powerful to account, provides a journal of record and is a forum for ideas. While not all market failures need to be addressed, this one needed to be, and was, with the Australian code.
Prior to the Australian code being passed, the news media businesses were simply unable to negotiate with the platforms for any payment for their content. With it, they could require the platforms to negotiate and trigger arbitration if those negotiations did not yield an appropriate result. The threat of arbitration evens up the bargaining power, as all parties wish to avoid having an arbitrator determine commercial arrangements.
Australia's code has been extremely successful in achieving its objective. From not being able to engage with the platforms because they wouldn't allow them to, the Australian news media businesses that have done deals under the code are comfortable with them, and these deals are yielding well over $200 million Australian per annum to the news businesses.
Further, Google has now done deals with essentially all eligible media businesses, while Facebook has likely done deals with media businesses employing around 85% of Australian journalists.
There are three essential features of the Australian code, all of which seem to be in Bill C-18. First, if negotiations are unsuccessful, there is recourse to final offer arbitration; second, non-discrimination, which means that if deals are done with one media business, then deals must be done with all; and third, the ability to collectively bargain.
You may be aware that Google threatened to take Google Search out of Australia, and Facebook threatened to take down all news from its News Feed if the code's legislation proceeded. The legislation was passed, but both threats were not carried out.
One outcome, however, was that the government said that if the platforms wished to avoid designation under the code, they should go out and do deals. This they did, and quickly; that is, therefore, instead of the threat of arbitration driving commercial deals, it was the threat of designation that became important. The difference does not matter. The code's objective of driving commercial deals was achieved.
Let me just address two criticisms of the code.
The first, as has been said just now, is that it was only the large media players that got deals and the smaller players missed out. This is just simply false. The facts are very clear. Australia has four roughly equal, large news media businesses. They all got deals. It has a number of medium-sized businesses that all got a deal from Google, but two of them, strangely, did not get a deal with Facebook while the rest did, so most of them got a deal with Facebook, but not all. We have many smaller media businesses, especially small regional and rural newspapers and digital natives. Essentially all of them got a deal from Google, and most of them got a deal from Facebook.
The amounts paid per journalist were usually much larger for the smaller businesses. Indeed, Country Press Australia, which represents 180 rural publications, received possibly the highest payment per journalist employed.
Professor, Crawford School of Public Policy, The Australian National University, As an Individual
Second, some say that the money did not generate extra jobs in journalism. That's not true. It did. You can see that everywhere. As one example, Guardian Australia increased its employment by 50%, essentially because of payments under the code.
Thank you for the opportunity to speak today, albeit virtually, and thanks very much to your excellent IT team.
Thank you.
Liberal
The Chair Liberal Hedy Fry
Thank you very much, Professor Sims. Please remember that we're going to have a question and answer period, so we need you to hang on there for the rest of the meeting. Thank you.
Clerk, are we ready for Dr. Geist?
Conservative
Kevin Waugh Conservative Saskatoon—Grasswood, SK
Madam Chair, we've had multiple interruptions with Dr. Geist. Could we go back to the four minutes? We do need to hear from Dr. Geist. I think if you went back to after his first introduction it would be fine, but I think it would be fair to say the four-minute mark and let him go from there.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
Thank you, Chair, and thank you to the members of the committee. I'm hoping this will work.
I'll go directly to the four issues I wanted to raise. First, the approach to the use of news—
Bloc
Liberal
The Chair Liberal Hedy Fry
Yes, Martin.
Clerk and IT, is everything okay on your end?
Obviously, the problem is on your end, Dr. Geist.
Let's try it again.
Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual
I'm sorry. In many appearances, this is the first time it's happened this badly.
First, the approach to the use of news in news articles extends far beyond what a reasonable person would consider “use”. Subclause 2(2) covers both reproduction of any portion of a news article and facilitating access to news by any means. The first part means that even reproducing a news headline or sentence summary is covered, even though that form of use is freely permitted by copyright quotation rights under the Berne Convention.
The second part means that linking or indexing to the front page of the news site—not even to an article—is treated as a compensable activity. That just can't be right; treating mere linking as a thing of value requiring compensation runs counter to Supreme Court jurisprudence on the importance of linking, and threatens the lifeblood of the free flow of information on the Internet.
If Google or Facebook copied and distributed full articles, I could understand the arguments around compensation. Indeed, those companies have struck deals in Canada to pay for exactly that. But when Dr. Fry posts a link on her Facebook to an MSN.ca article or Mr. Julian posts a link on his Facebook to a Canadian Press article, as they did this summer, like millions of other Canadians, I don't think we are anywhere near making available news a standard that should require compensation.
Second, the government has claimed the bill involves minimal market intervention, yet the reality is that there is an astonishing number of standards and bargaining rules established by the government or the CRTC in the bill, which has a real-world impact on government interference, blurring the news editorial and business divide.
Third, at a time when there are rightly concerns about misinformation and low-quality news sources, Bill C-18 risks increased misinformation. For example the definition of “news content” contains no standards or links to professional journalism. Instead, the definition, which I should note is different in the English and French language versions of the bill, could incorporate blog posts, opinion pieces and other content.
The government's approach to qualified Canadian journalism organizations has detailed guidance on what constitutes news to ensure that tax breaks go to high-quality, original journalism. Bill C-18 does the opposite. Moreover, the bill creates potential liability for platforms that use algorithms to demote content. To be clear, we need greater algorithmic transparency, but the provision on undue preferences may mean that platforms refrain from demoting low-quality journalism for fear of liability.
Fourth, the bill is offside several treaty and constitutional obligations. For example, clause 24, which excludes copyright limitations and exceptions from the bargaining process, may violate article 10(1) of the Berne Convention, which has a mandatory right of quotation that expressly includes newspaper articles.
Further, the bill is filled with potential CUSMA challenges. For example, clause 51 of the bill features what amounts to a must-carry obligation designed to prevent a platform from refusing to link to third party content. While self-dealing measures targeting anti-competitive conduct by the platforms are welcome—
