Canadian Heritage Committee on Nov. 25th, 2022

[Chris Bittle, Liberal, St. Catharines, ON]

I do not really, but to help with the Conservative filibuster, I guess I'll....

[The Vice-Chair, Conservative, Kevin Waugh]

There's no filibuster.

[Chris Bittle, Liberal, St. Catharines, ON]

I am put on the spot.

I was just quoting from Professor Taylor Owen about how the exemption criteria are—

I'm sorry. I'm just seeing the lights flash.

[The Vice-Chair, Conservative, Kevin Waugh]

They are.

[Chris Bittle, Liberal, St. Catharines, ON]

The exemption criteria set out in the bill are some of the primary tools of Bill C-18. That's the premise.

[The Vice-Chair, Conservative, Kevin Waugh]

Okay. I want to go to Ms. Gladu and then Mrs. Thomas.

Ms. Gladu, your hand was up first.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Thank you, Chair.

I just want to say that I support this amendment because I think people do not want the government, after the fact and with no parliamentary oversight, deciding what to put in the regulations to exempt people from this framework. I think we need to have transparency about it.

Taking out paragraph 11(1)(b) leaves the rest of it really clear about what the terms are.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you.

We'll go to Mrs. Thomas.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

Let's be really clear here. I recognize that the members opposite enjoy launching baseless attacks against this side of the table. Allowing for paragraph 11(1)(b) to remain in there, such that it would be up to the cabinet to determine “any condition” to be applied with regard to an exemption, would actually put news businesses in danger, because they wouldn't know under what conditions DNIs could move forward with an exemption.

Those conditions could be, for example, that the CBC had entered into a negotiation or Bell had entered into a negotiation or any of these big companies had entered into negotiations, so therefore an exemption would be granted. How would that help ethnic media? How would that help our local newspapers? Allowing this paragraph to stay in there and allowing for such vague criteria to be implemented by cabinet actually puts the little guys in danger.

Let's be really clear about what's going on here. It allows for this government to show favouritism towards the big media companies that push out their story and it puts the little guys in danger, because they could be prevented from entering into negotiations with DNIs because DNIs could be granted the exemption.

[The Vice-Chair, Conservative, Kevin Waugh]

Are there any other comments?

Seeing none, we'll proceed with the vote on amendment CPC-12.1.

(Amendment negatived: nays 7; yeas 3)

Thank you. Amendment CPC-12.1 is defeated.

We will move to amendment NDP-4.

Mr. Julian, before you get started, I'll say that if amendment NDP-4 is adopted, amendment CPC-13 cannot be moved due to a line conflict.

The floor is yours, Mr. Julian.

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

Thank you very much, Mr. Chair. It's good to see you in the chair with us.

I disagreed with the form, the content, of the CPC amendment. I did agree with the thrust of Mrs. Thomas's argument, which is that we need to make sure there are very clear criteria in terms of granting exemptions.

On amendment NDP-4, you'll recall that our testimony with respect to any independent online news publishers of Canada was very clear in this respect. The current criteria for laying out exemptions are too vague and really leave the door open for big tech to push hard for an exemption when they haven't completed negotiations.

What amendment NDP-4 proposes is that clause 11 would be amended to ensure that deals must be made with all eligible news organizations before the platforms would be granted an exemption. That would ensure, with the window of opportunity that's provided, that eligible news organizations can identify themselves and that big tech does have to make that negotiation.

Then Mrs. Thomas asked the rhetorical questions about ethnic media, small media and those that big tech may not choose to negotiate with. Amendment NDP-4 resolves that question by ensuring that all of the eligible news organizations need to have those agreements before big tech can apply for the exemption. Hopefully it will receive support from all four corners of this committee and it will help to tighten the rules around exemptions.

[The Vice-Chair, Conservative, Kevin Waugh]

Go ahead, Mr. Bittle.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you so much, Mr. Chair.

With respect to my friend Mr. Julian, I appreciate what he's trying to do. However, I worry that this may undermine the bill. Given the tactics of foreign tech giants, they will look for any way in which to avoid the requirements. If there is just one hold-out media outlet.... We've seen some media outlets that don't agree with this and may not even bother applying.

On the exemption itself, the purpose of the bill is to have platforms reach deals with news organizations themselves—

[Rachael Thomas, Conservative, Lethbridge, AB]

[Inaudible—Editor]

[Chris Bittle, Liberal, St. Catharines, ON]

Pardon me?

[Rachael Thomas, Conservative, Lethbridge, AB]

It's an internal thought.

[Chris Bittle, Liberal, St. Catharines, ON]

It's internal thought.

Here's the ironic thing, to anyone listening. Mrs. Thomas just engaged in a heckle. She likes to attack everyone's credibility and then cry foul when there's a perceived attack on her credibility, which there never is. There's a high amount of respect on this committee, except for one member of this committee who continuously engages in personal attacks.

That said, some parties already have deals and don't want to renegotiate or go through arbitration. However, this amendment would undermine the exemption mechanism by removing the initiatives for platforms to seek an exemption. It instead would incentivize platforms to go through the bargaining process, through which they would likely delay for as long as possible through legal challenges and procedural methods. While we understand the intent, it will only benefit the tech platforms with money and resources to drag this process out as long as possible.

Exemptions were a key element of the Australian law. In Australia the addition of the exemptions process addressed the concern about platforms that would remove or threaten to remove news content. By undermining it, as I said, we jeopardize the bill. A better outcome could be achieved through collective bargaining. I know that Mr. Julian is a big champion of that in this bill and in other fora as well. That is the way to get as many outlets together as possible.

We've heard from the major players that they are willing to collectively bargain with smaller players, and that is the best way to get as many deals as possible. In the end, my worry is that requiring all of them is a loophole that will serve the foreign tech giants.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you, Mr. Bittle.

We'll go to Mrs. Thomas and then Mr. Housefather.

Go ahead, Mrs. Thomas.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

I support this amendment in principle. I will offer a subamendment, though.

Essentially, this bill is that DNIs have to enter into negotiations with eligible news businesses. This amendment makes sure that if there are 20 lined up to bargain with the DNIs, all 20 have to be bargained with before an exemption can be granted.

I fail to understand how that is benefiting big tech. Everyone lined up and everyone wanting to enter into negotiations gets to enter into negotiations. That's favouring the little guy. That's advocating for them.

I guess I'll ask Mr. Ripley a question for clarification.

Is allowing all eligible news media sources to enter into negotiations with DNIs before an exemption can be granted leaving some eligible news businesses out of the picture?

[Thomas Owen Ripley]

Thank you for the question, MP Thomas.

If this amendment were to be adopted, it would in essence require platforms, as you indicate, to come to an agreement with all eligible news businesses prior to getting an exemption. It would be a major departure from the way the bill is currently structured. The bill right now is intended to put in place a bargaining framework, and through the exemption criteria indicate that a certain threshold must be met in order for DNIs to get an exemption.

The intention behind that was to put in place an incentive for DNIs to want to get an exemption. That was very much modelled on the Australian experience, where the goal is not to actually rely on the back end of this bill in terms of mandatory bargaining and final offer arbitration. In that context, in the context of a bargaining framework, it is understood that there could be news businesses that do not have an agreement in place with a DNI, because the exemption criteria could be met.

One observation is that if you go the route of requiring an agreement with every single news business in order to have an exemption, it is unclear to us whether any DNI would actually pursue an exemption at that point, because it's not clear whether there's really an incentive structure to do so: Why not simply rely on the mandatory bargaining framework at the back of the bill?

[Rachael Thomas, Conservative, Lethbridge, AB]

I have a further question, Mr. Ripley, in terms of the exemption order.

If our goal is ultimately to allow these smaller entities—local newspaper entities, ethnic media entities, etc.—the opportunity to enter into negotiation, what benefit does the exemption order have to the news businesses?

[Thomas Owen Ripley]

The government shares that objective in that a DNI should not be able to get an exemption without having agreements in place with small independent players.

In terms of the government's position, if you look at the exemption criteria, you will see that there are strong markers put there about the importance, under subparagraph 11(1)(a)(ii), of supporting the production of local news content. Subparagraph 11(1)(a)(v) is really a critical one for independent local news businesses in that “a significant portion” of them have to benefit from the agreements and that the benefits have to “contribute to the sustainability of those businesses”. Then, in subparagraph 11(1)(a)(vi), again, you see reference to “a range of news outlets”, including local news and different kinds of business models.

All of this is to say that the government does share that objective. These agreements need to be diverse. They cannot be simply with a small group of consolidated players but have to be put in place with independent local news businesses.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you, Mr. Ripley, but my question was this: How does the exemption benefit these smaller news outlets? How does it defend their ability to enter into negotiations?

[Thomas Owen Ripley]

In short, the bill is about putting that obligation on platforms to bargain. Then the exemption criteria benefit independent local news businesses by saying that in the context of that bargaining obligation, some of that bargaining has to be with them. When the CRTC looks at all of the agreements that are being brought forward to justify an exemption, again, they have to see that “a significant portion of independent local news businesses benefit from” those agreements, and that it contributes to their sustainability.

Again, the intention behind the exemption process was not that every news business be entitled to an agreement but that there be certain discretion left to the free market for the DNIs and the news businesses to determine that. At the end of the day, the CRTC assesses whether enough has been done in relation to these criteria.

[Rachael Thomas, Conservative, Lethbridge, AB]

I would put forward a subamendment to my colleague's amendment. I wonder if he would accept this.

I move that we take paragraph (b) from CPC-13, which replaces line 32 on page 4 to line 17 on page 5 with the text outlined in CPC-13, and add it in with NDP-4.