Canadian Heritage Committee on Nov. 18th, 2022

[The Chair, Liberal, Hedy Fry]

Mrs. Thomas.

[Rachael Thomas, Conservative, Lethbridge, AB]

I notice that you used the word “potentially”, so it doesn't seem like there is a clear definition there.

As you can imagine, I think everybody who may or may not be included in this legislation is eager to know, because this legislation mandates that they report themselves to the CRTC as a DNI. If they fail to do so, they can face a penalty.

The fact that this is unclear today is very concerning. Are you able to give a clear definition? Is Twitter captured or is Twitter not captured?

[Thomas Owen Ripley]

Thank you for the follow-up question, Mrs. Thomas.

Let me be clear. My assessment would be that Twitter is a social media service and thus, yes, meets the definition of a digital news intermediary for the purposes of this framework.

Again, whether it's subject to the framework—and that is why I caveated my answer previously—would depend on whether it meets the threshold set out in clause 6 and whether it then becomes a designated platform.

[The Chair, Liberal, Hedy Fry]

Mrs. Thomas.

[Rachael Thomas, Conservative, Lethbridge, AB]

I'm wondering if there is other legislation where the term “digital news intermediary” is used, or if this is the first piece of legislation where we see the introduction of a new term.

[Thomas Owen Ripley]

Thank you, Mrs. Thomas.

I believe this is the first piece of legislation that uses this term. It's a concept being created for the purposes of the bargaining framework that recognizes that you can have platforms that have multiple types of services.

The way the bill is structured recognizes that you have a parent company, such as Meta or Alphabet. They operate multiple different kinds of services. One of these services could be a digital news intermediary, such as Google Search or Facebook, for example. The legislation is designed in a way to reflect that corporate structure that is part of the digital environment.

[The Chair, Liberal, Hedy Fry]

Mrs. Thomas.

[Rachael Thomas, Conservative, Lethbridge, AB]

I'm curious, then, whether Facebook Messenger would be captured within this legislation. It would appear to me that it is both a social media platform and simultaneously a private messaging system.

Given the lack of clarity within the definition you're offering today, I'm wondering if you could, perhaps, provide greater certainty.

[Thomas Owen Ripley]

Thank you, Mrs. Thomas.

My assessment of Facebook Messenger is, again, that it is primarily a messaging service. Therefore, that type of service, a service like WhatsApp.... Those, again, are excluded from this definition of “digital news intermediary” in light of that last sentence, which clarifies that private messaging services are excluded.

[The Chair, Liberal, Hedy Fry]

Mrs. Thomas, your hand is going to remain up for quite a while, so I suggest you go ahead and ask your question.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you, Madam Chair. I will continue to raise my hand. In the event that somebody else wishes to interject, of course I'm happy to share the floor.

I'm curious, as well, about TikTok. Would that be considered a DNI?

[Thomas Owen Ripley]

Thank you, Mrs. Thomas.

My assessment is that a service such as TikTok would qualify as a social media service and thus, yes, potentially be subject to the framework.

Before it is designated, though, any service would have to respond to the criteria set out in clause 6, and those specific thresholds would be set through Governor in Council regulations. To be absolutely clear, no digital news intermediary would be subject to the framework until those Governor in Council regulations were done and those thresholds established. Those are really the things that would, then, make a platform designated for the purposes of the act.

[The Chair, Liberal, Hedy Fry]

Mrs. Thomas.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

I guess I'm curious, then. It seems as if there's an awful lot being left up to the Governor in Council to determine, as well as the CRTC. For the sake of clarity, for the benefit of those of us around the table, could you define what is meant by Governor in Council? What entity is that? Who's making that decision?

[Thomas Owen Ripley]

Thank you, Mrs. Thomas, for the question.

The Governor in Council is the typical process used for regulation-making in many instances when it's not the regulatory body making those regulations but rather the government. The way that is typically done is that a government department would pre-publish proposed regulations in part I of the Canada Gazette for consultation, and stakeholders would have an opportunity to consult on those proposed regulations.

The sponsoring government department would then seek to finalize those regulations, and the responsible minister would bring a regulatory package forward to the Treasury Board. It is the cabinet committee that is responsible, generally, for making Governor in Council regulations, and that regulatory package would be reviewed and approved by the Treasury Board.

The final regulations are published in Canada Gazette part II.

[The Chair, Liberal, Hedy Fry]

Go ahead, Mrs. Thomas.

[Rachael Thomas, Conservative, Lethbridge, AB]

I'm curious, then. As of right now, which political party is the cabinet composed of?

I'm also curious to know if, in Canada's history, anyone other than the governing party has composed the cabinet.

[Thomas Owen Ripley]

In terms of the first part of your question, Mrs. Thomas, it's currently the Liberal Party of Canada that is the governing party.

In terms of your second question, I'm afraid I'm not in a position to know whether every cabinet has consisted of solely the governing party in Canada.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

I have a point of order, Madam Chair.

[The Chair, Liberal, Hedy Fry]

Yes, Mr. Julian.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

I find the line of questioning like “Which party is forming the Government of Canada?” to obviously be wasting the time of this committee.

We've heard from so many witnesses who want to see this bill improved, but who also want to see this bill passed. If Mrs. Thomas simply does not want to pass the bill, then I think she should be straightforward and say that, rather than ask questions such as “Which party is forming the Government of Canada?”

I think that type of simplistic questioning is something that does a disservice to all of the money that Canadians are investing in this committee hearing. This is something, with the translators and all of the staff, that means there's a tremendous cost to Canadians.

We have work to do, and I would certainly hope that Mrs. Thomas would allow us to do it.

[The Chair, Liberal, Hedy Fry]

Mrs. Thomas, go ahead.

[Rachael Thomas, Conservative, Lethbridge, AB]

I'm curious to hear from the officials if the Governor in Council really means that the cabinet is making the decision. If the cabinet is traditionally composed of, I believe.... You're not saying it. You're saying right now that it's composed of Liberal members, which, of course, is the governing party. My recollection or recall of history would say it's always been the case that the governing party has made up the cabinet.

I'm curious, then. Do you think that it's in any way possible that these types of decisions, such as determining the definition of a “digital news intermediary” in that framework in clause 6...? Could there be any potential of that being politically motivated?

[Thomas Owen Ripley]

Thank you for the question, Mrs. Thomas.

I will refrain from offering an opinion on that question.

What I would say is that when we bring forward a bill like this, there is careful consideration given within the department but also in consultation with our colleagues in the machinery of government about how to structure the regulatory powers that are laid out in any piece of legislation.

You know that there are legislative questions and policy decisions that the government is asking Parliament to consider. In terms of the calibration of the regime and to make sure that the regime can evolve as technology evolves and as these companies evolve, there are certain calibrations that are given to the Governor in Council.

As you likely know, there are certain regulatory decisions that are being left up to the CRTC in terms of the fine tooth. It's always a question of the proximity to the fine details on the ground—they are something that we consider—and who is the most appropriate to make that decision. It is a common occurrence to have the Governor in Council set certain broad regulatory decisions, such as those being proposed in this bill.

[The Chair, Liberal, Hedy Fry]

Mrs. Thomas, you have the floor.