Thank you very much, Chair.
Good afternoon. My name is Michael Geist. I'm a law professor at the University of Ottawa, appearing in a personal capacity, representing only my own views.
Thanks to the committee for this unexpected opportunity to speak again about Bill C-18, particularly following some of the technical challenges I faced during a prior appearance.
I'd like to focus my remarks on why I think the bill mandates payment for links, and why I think that creates a threat to freedom of expression. Before doing so, let me highlight several additional concerns I'd be happy to address in further detail during the question period.
First, Bill C-18's eligibility criteria are deeply flawed. I think everyone's aware, and I think you've already heard, that the current rules may exclude some small news outlets. Beyond that, the dominance of broadcasters in the system, notably companies such as Bell and the CBC, I believe runs counter to the professed goal of the bill supporting local independent news. The Parliamentary Budget Officer estimates that more than 75% of the revenues will go to these companies. This is despite limited tangible connection between links and radio stations and that CBC news content, I think, is a public good for which facilitating access should be encouraged.
Second, many of the eligible news outlets will not be subject to journalistic standards under this bill. Unlike the QCJO model, which features detailed rules to ensure appropriate standards before tax support is available, Bill C-18 allows other news outlets, including foreign outlets, to qualify without similar standards, risking low-quality journalism.
Third, Bill C-18 violates copyright norms by suspending “limitations and exceptions” from the bargaining process in clause 24. This runs counter to the foundation of Canadian copyright law and may violate article 10(1) of the Berne Convention, which has a mandatory right of quotation that expressly includes news articles.
Fourth, Bill C-18 establishes final offer arbitration, yet still intervenes in the process by allowing the panel to reject final offers. That upends the entire purpose of the model, which is designed to encourage best offers by both sides.
Fifth, I think it's important to note that the government's existing policies with tax support may be working. Minister Rodriguez talked about over 400 news outlets having closed since 2008, but neglected to mention the same report found over 200 new news outlets opening in the same period, and that there have been no net new losses over nearly the last two years.
There are other concerns, but I want to use my remaining time to focus on what I think is the biggest issue—mandated payments for links.
The definition of facilitating “access to the news content” in subclause 2(2), upon which this system is based, includes a breathtakingly broad definition that clearly includes links, aggregation, and even indexing.
The inclusion of links is not in doubt. Minister Rodriguez has talked about the value of links. The Canadian Association of Broadcasters, when they appeared before this committee, talked about the value of links, saying “the whole purpose of why we're here and what we're talking about with Bill C-18” had to do with value of links. And even earlier this week, Mr. Coteau said that he found it astonishing that some argue that if you click on a Twitter link there is no value.
The Supreme Court of Canada has warned that creating liability for links could impair the way the Internet functions, yet payments for links are at the core of this bill. It doesn't matter if it is an aggregate charge for all links or a per-link fee; the harm is the same.
Bill C-18 not only requires payment for links, but it says that expression with links is not equal. Links to news content from sources such as Bell or the CBC are viewed as compensable, but similar links to news content from small media outlets are not.
Further, the bill effectively says that whether compensation is due also depends on where the expression occurs, since it mandates that certain venues pay to allow their users to express themselves. Post a link to a Globe and Mail news article on Facebook, and the bill says there is value that should be compensated; post the same link on Twitter, as Mr. Coteau noted, and the bill says it doesn't.
Aside from the obvious unfairness, the broader implications of this policy, I think, are even more troubling. Once the law says that some platforms must pay to permit expression, the same principle can be applied to other policy objectives, and the entire foundation for sharing information online is placed at risk.