Bill C-18 gives CRTC powers over online news

The Federal government has just introduced Bill C-18, the Online News Act, which it says will ensure “… that news media and journalists receive fair compensation for their work.” It will give the CRTC powers to enforce the legislation.

It is a 92-section law that creates a link tax requiring online entities such as Google and Facebook to pay for hyperlinks to news stories. Newspaper publishers, of course like the idea, and have been lobbying for the legislation.

I’m not convinced this is a good idea either conceptually or as detailed in the Bill. It is purely a way to move money from internet platforms to traditional news media.

This strikes me as an anti-internet, anti-tech move like Bill C-11 that will give the CRTC powers over the internet and Canadian content. In my view, court decisions around the internet get it right, but legislators do not.

Let’s be clear what this is not about. What Google, Facebook, and other online services do by linking to news stories or anything else published on the web is legal. They are not copying content. Court decisions on linking have made it clear that mere linking does not violate copyright or other laws.

Nor is this about search engine or social media publication of links to unlawful or objectionable content. Nor is it about privacy or cookies.

As much as online publishers complain about Google and others making money from their content, publishers rely heavily on Google and others to bring traffic to their sites and material. In other words, the online publishers obtain value from the links.

Unintended consequences of Bill C-18

Lawmakers meddling with the internet is not something to be taken lightly. It is complex, can easily have many unintended consequences, and should not be rushed through. We should pay close attention to the detail, consider all sides, and not be swayed by government justifications that gloss over the detail or ignore contrary thoughts.

Anyone wanting to dive into the negative aspects of Bill C-18 should read posts by Professor Michael Geist of the University of Ottawa law school, who is Canada Research Chair in Internet and E-commerce Law.

In recent posts, he refers to the Bill as “… a government-backed shakedown that runs the risk of undermining press independence, increasing reliance on big tech, and hurting competition and investment in Canadian media.”

Prof. Geist points out that the Bill is far from clear on what entities might be considered “Digital news intermediaries” — which will have to pay, or “eligible news businesses” — which are entitled to payment.

He also says “Bill C-18 is shamefully over-broad, an embarrassment to the news media lobby that demanded it, and unworthy of a government that sees itself as a model for the rest of the world on media freedoms.”

For many years, the Federal government took a hands-off approach to the internet and refused to bring it under the control of the CRTC as broadcasting. This Bill, and Bill C-11, reverses this longstanding policy and will give the CRTC huge regulatory and enforcement powers over the internet and its content.

David Canton is a business lawyer and trademark agent at Harrison Pensa with a practice focusing on technology, privacy law, technology companies and intellectual property. Connect with David on LinkedIn and Twitter.

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