Thank you, Madam Chair, for inviting me to comment on Bill C-18.
As you know, the stated purpose of the bill is to regulate digital news intermediaries, with a view to enhancing fairness in the Canadian digital news marketplace while contributing to its sustainability. The underlying rationale of this bill can be summed up very simply: Local news publishers do not get appropriate compensation for news they produce that reaches the public via digital platforms.
To rectify the situation, the act contemplates a mandatory bargaining process between the platforms, called digital news intermediaries or DNIs, and news publishers, called ENBs. The process is very simple. DNIs have to identify themselves; ENBs are qualified by the CRTC. They have to bargain. The bargaining is mandatory. It has to be done in good faith. If the bargaining fails, there is mediation. Finally, if mediation fails, there is a final offer of arbitration. All of this is to be done under the auspices of the CRTC, which designates the parties, manages the process, furnishes a panel of arbitrators, and advises throughout.
I am not here to question the rationale of the legislation nor the method adopted. Rather, I would like to share with you some problems I see in implementing this legislation. This should not be taken to mean that I support this legislation, however.
It goes without saying that implementing this bill will present the CRTC with a huge new challenge. I look at these issues from the perspective of former chair of the CRTC. When you implement a bill, the legislation should be specific and objective. That is very helpful to the administrator, while vagueness and overly broad discretion mean numerous demands, contestations and delays.
There are five points I would like to bring to your attention.
First, whom does this act apply to? How do you identify the DNIs? The bill requires DNIs to self-identify and notify the CRTC. The criteria are based on whether there is a significant bargaining power imbalance between the operator and the news business. It is based on such criteria as the size of the intermediary, whether the market gives the intermediary strategic advantage, and whether the intermediary occupies a prominent market position.
The concepts of size, market, strategic advantage and prominent position are all borrowed from competition law and very much depend on context. They do not have an objective meaning. Rather, it seems to me that it will be a dog's breakfast trying to identify DNIs. They are asking companies to self-identify and giving the CRTC power to compel information to decide if the respondent is a DNI. The bill should be amended and provide that the minister, by regulation, and after consultation with the commissioner of competition, designate the DNIs.
Second, who benefits? On request, the CRTC must designate a business as an ENB if it is a “qualified Canadian journalism organization”, as per the Income Tax Act—that's fine—and produces news content “primarily focused on matters of general interest and reports of current events”, “regularly employs two or more journalists” in Canada, operates in Canada, and produces news content that is “not primarily focused on a particular topic.”
That is a very wide definition. It does not exclude government, overt political actors or foreign actors. It has no reference to journalistic standards and would even seem to include broadcasters, who are obviously regulated by another statute. In my view, this section should be amended to provide that ENBs have to be Canadian-owned and Canadian-controlled, must adhere to journalistic standards as set out in the code of ethics of the Society of Professional Journalists, and should not include licensed broadcasters and their affiliates or government actors.
Third, the bill allows the CRTC to exempt a DNI if it has an agreement with an ENB. That agreement must provide fair compensation to the news businesses for the news content. That is fair ball. That is what it is all about.
Then it goes on to say “ensure that an appropriate portion of the compensation will be used by the news businesses to support the production of local, regional and national news content” and that it does “not allow corporate influence”, etc. There are all these points. If you look at them together, they're really purposes. They should not be here; they should be in the purpose section.