Evidence of meeting #54 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 amendment.
A recording is available from Parliament.
2:10 p.m.
Conservative
Rachael Thomas Conservative Lethbridge, AB
Thank you, Madam Chair.
I want to clarify something very quickly for the benefit of the public.
Right now, we're going through clause-by-clause. If this isn't the appropriate time to ask legal questions around clause 2, which is currently the clause that we are speaking about and want to amend, I'm not sure when that appropriate time would be.
To be accused of other motivations is very incorrect. Madam Chair, I would ask that you not entertain those as points of order, because they are not.
2:10 p.m.
Liberal
The Chair Liberal Hedy Fry
Mrs. Thomas, I am sorry. While I am chair, I will decide what is or is not a point of order.
2:10 p.m.
Liberal
The Chair Liberal Hedy Fry
Thank you very much.
Mrs. Thomas, do you have a question for someone?
Go ahead.
2:10 p.m.
Conservative
Rachael Thomas Conservative Lethbridge, AB
I do have a question. Thank you.
Within this, we're talking about digital news intermediaries, and it's within that definition that we therefore determine whether or not this amendment is suitable, because the amendment would change this clause and its application.
My question is with regard to the CRTC having jurisdiction. Mr. Ripley earlier said that the CRTC does have oversight with regard to broadcasting but not with regard to newspapers. He did go on to clarify, though, that the CRTC would.... This is where I need further clarification, because it sounded like Mr. Ripley was saying that the CRTC would determine, with the help of the Governor in Council, what constitutes a DNI, but if I heard him correctly, he said that the CRTC would not be interfering or having a role to play in terms of determining what qualifies as an eligible news intermediary.
I am just looking for further clarification around that, because I did get the sense from this legislation that the CRTC would, in fact, have a role to play in terms of determining if an entity fits this definition of eligible news intermediary. I am just looking for some clarification around that definition and what role the CRTC will play.
2:10 p.m.
Associate Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage
The mechanism that is set out in the bill is that there are three criteria in clause 6 that will indicate when a digital news intermediary is subject to the legislation. The specifics of those three criteria will be determined through Governor in Council regulations. The CRTC does not have a role in setting those criteria.
Once those criteria are set, the mechanism in the bill is that digital news intermediaries are expected to come forward and identify whether they believe they meet those thresholds or not, and, if they meet those thresholds, they are to indicate to the CRTC that they meet those thresholds.
The CRTC has information-gathering power to ensure compliance with that mechanism, but that's the mechanism that is foreseen by the bill.
If it's helpful, the division of power at the regulatory level between the Governor in Council and the commission is set out in clauses 84 and 85, where you have the specific list of regulatory powers that are given to each entity.
2:10 p.m.
Conservative
Rachael Thomas Conservative Lethbridge, AB
Mr. Ripley, thank you for that clarification.
I will come back, then, to this amendment that has been put forward with regard to scope of Parliament, because this bill has to do with two entities. You have your digital news intermediaries, such as Google and Facebook, and then you have your eligible news businesses.
Does Parliament have jurisdiction, then, over news? Is it up to Parliament to determine what qualifies as a legitimate news business and what doesn't? Is that Parliament's responsibility right now? If so, I am curious as to what legislation permits that or makes that Parliament's role.
2:15 p.m.
Associate Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage
The subjects of regulation—if I were to put it that way—for this bill are the digital news intermediaries, or in other words, the digital platforms.
The legislative obligation to bargain with news businesses is on those intermediaries. The legislative regulatory obligation is on them, and then what the bill does is give greater clarity about what is the expected scope of that bargaining obligation in terms of the kinds of news businesses that a digital news intermediary would have to have agreements with in order to qualify for an exemption, as set out in clause 11.
Failing that, news businesses could invoke the mandatory bargaining framework in the latter part of the act, but the subject of regulation of this bill is the digital news intermediary. It is not news businesses.
2:15 p.m.
Conservative
Rachael Thomas Conservative Lethbridge, AB
Mr. Ripley, I'm sorry, but you can't really regulate one without the other. At the end of the day, it's bargaining, so there are two different entities that are trying to enter into a negotiation and hopefully reach an agreement with regard to compensation.
On the eligible news businesses, you just said that the Governor in Council would determine the criteria, and then the CRTC would be responsible for applying those criteria. If it's the Governor in Council—which, effectively, ultimately comes down to a cabinet decision—then it is actually Parliament that is determining who qualifies as an eligible news business.
At the end of the day, the digital news intermediary can only be held accountable for entering into negotiations with those who qualify. If an entity that doesn't qualify comes forward and says the DNI has refused to negotiate with it, then it's no big deal; they didn't make the cut. But if an entity comes forward that does make the cut, then there is in fact accountability and it would be up to the CRTC to enforce that. However, in order for the CRTC to enforce that, again, coming full circle, it was up to the Governor in Council to determine that set of criteria.
I feel like we're talking in circles here a little bit. How can you engage...? How can the DNIs be expected to engage in negotiations if there isn't a second party? I think the answer to that question is that of course there's a second party and that second party is the eligible news business.
What makes them eligible? You said that it's the Governor in Council that determines that through a set of criteria. Again, coming around another circle, with all due respect, I would say then that Parliament is being put in the place of having to make a decision with regard to what is and is not an eligible news source or a legitimate news source in the nation. In fact, the way the bill currently stands, it doesn't even have to be within the nation. It could be a foreign entity as well.
Anyway, I'm just curious how Parliament is.... Help me understand here. Am I not seeing this correctly? It seems like Parliament would need to be involved in terms of that definition of eligible news source.
2:15 p.m.
Associate Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage
Thank you, Mrs. Thomas.
Maybe I will just clarify, because I wonder if there was a bit of a misunderstanding between us earlier. I had thought you were asking about the designation of digital new intermediaries earlier, and so my comments about those thresholds being set through Governor in Council regulation were with respect to digital news intermediaries, i.e., the digital platforms.
With respect to the eligibility of news businesses, the eligibility criteria are set out in clause 27 of the bill itself. There is no Governor in Council regulatory power set out in clause 27. It is a matter of the CRTC applying those eligibility criteria that are set out in the bill to entities that wish to avail themselves of the mandatory bargaining framework at the latter part of the bill.
With respect to your question, my answer would be that there is nothing that obliges a news business to bargain under the framework. Therefore, if a news business does not wish to participate in the framework, it is not under an obligation to do so.
I come back to the fact that the legislative obligation to bargain is placed on the digital news intermediary. There is no such obligation on the part of a news business to participate in the framework.
2:20 p.m.
Conservative
Rachael Thomas Conservative Lethbridge, AB
For final certainty, Mr. Ripley, because the amendment we're dealing with here has to do with “subject to the...authority of Parliament”, can you outline the ways in which Parliament will be involved in this legislation?
2:20 p.m.
Associate Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage
The primary way is by passing the bill. Parliament would essentially create that legislative obligation on entities that meet the definition of digital news intermediary to bargain, assuming that they meet those threshold criteria set out in clause 6. Parliament is exercising its jurisdiction over a certain class of business, of undertakings, and subjecting them to a legislative obligation.
2:20 p.m.
Conservative
Rachael Thomas Conservative Lethbridge, AB
I understand that Parliament would have an initial role to play in terms of passing this legislation, but coming back to a reference you made with regard to the Governor in Council, and the bill makes reference to that as well.... I hope that my question isn't skipped over. I'm truly seeking an answer here to understand to what extend Parliament will, in any form, be involved in this legislation. The Governor in Council is a component of Parliament.
I am looking for an in-depth answer.
2:20 p.m.
Associate Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage
Parliament's primary role is to consider whether it wishes to pass this bill. If it does, then it obviously puts in place the framework that gives authority, as you note, to the Governor in Council and the commission to play the regulatory roles that are set out in the bill.
If your question is whether there is a regulation-making role for Parliament in this bill, the answer is no. The bill does contemplate a review of the act every five years. That's an opportunity for Parliament to again consider whether the framework has had the desired impact and whether it needs to be modified.
That is the future role contemplated by this bill for Parliament. Of course, it's the prerogative of any Parliament at any time to review legislation, amend legislation or repeal legislation. There is nothing in this bill that takes away from a future Parliament.
2:20 p.m.
Conservative
Rachael Thomas Conservative Lethbridge, AB
Mr. Ripley, I am a little concerned with the term “contemplates”. Does it ask for the review of Parliament or does it not? What do you mean by the term “contemplate”?
2:20 p.m.
Associate Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage
If it were to be passed, it would require a review every five years. What I meant by “contemplate” was simply a recognition that the bill has not yet been passed by Parliament, so everything in the bill is still conditional on that passage.
2:20 p.m.
Conservative
Rachael Thomas Conservative Lethbridge, AB
Thank you.
As a way of coming close to wrapping up here, with regard to the definition of a digital news intermediary, I'm looking for your comments on different applications that I find are quite unique in nature, so I'm looking for some clarity. Does LinkedIn fit the definition of a digital news intermediary? Does Reddit fall within the scope of a digital news intermediary? Do Discord and WhatsApp?
Can you comment on each of those four?
2:25 p.m.
Associate Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage
Thank you for the question.
With respect to LinkedIn, my assessment would be that it meets the definition of social media. It is a social media service and thus meets the definition of digital news intermediary. Again, it would potentially be subject to the framework if it met the threshold in clause 6.
For WhatsApp, as I alluded to earlier, my assessment would be that it is a private messaging service, and thus excluded from the definition of digital news intermediary.
Reddit would likely—again, Mrs. Thomas, you're asking me to do these assessments quite quickly on the fly here—meet the definition of digital news intermediary, although I would come back to the primary point that I made earlier that the framework is intended to apply to the dominant digital platforms. Again, a service like Reddit, for example, obviously is not on the same scale as Facebook or Google Search.
My understanding of a service like Discord is that it is primarily private messaging. Thus, it would fall into the exclusion for private messaging services.
2:25 p.m.
Conservative
Rachael Thomas Conservative Lethbridge, AB
Mr. Ripley, just for further clarification, you used the word “dominant” as it is used in this legislation. I'm just curious how that is defined within this legislation in order to know whether or not something falls within the scope of being a DNI and therefore within the scope of Parliament.
What does the term “dominant” mean? How is that differentiation determined?
2:25 p.m.
Associate Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage
It would be determined in relation to the three criteria set out in clause 6. It speaks to size, the market for that service here in Canada, and the question of a strategic advantage over news businesses. That term should be understood in relation to those three factors.
2:25 p.m.
Conservative
Rachael Thomas Conservative Lethbridge, AB
Okay.
Mr. Ripley, thank you. I think I have other questions that cross between this section and others, but I can wait for those other sections to put those questions forward.
Thank you.
2:25 p.m.
Liberal
The Chair Liberal Hedy Fry
The question on Ms. Gladu's amendment would be, shall CPC-01 carry?
(Amendment negatived: nays 7; yeas 4 [See Minutes of Proceedings])
