THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS
EVIDENCE
OTTAWA, Tuesday, June 13, 2023
The Standing Senate Committee on Transport and Communications met with videoconference this day at 9 a.m. [ET] to examine Bill C-18, An Act respecting online communications platforms that make news content available to persons in Canada.
Senator Leo Housakos (Chair) in the chair.
[English]
The Chair: Honourable senators, we are meeting this morning to begin our clause-by-clause consideration of Bill C-18, An Act respecting online communications platforms that make news content available to persons in Canada.
Members should have received a bundle of the amendments that the clerk was authorized to share, along with a roadmap to help the committee follow the clause-by-clause examination process. Have all members received the documents?
We are thankful to have officials from Heritage Canada joining us at the table if the committee has any questions: Thomas Owen Ripley, Associate Assistant Deputy Minister, Cultural Affairs; and Joelle Paré, Acting Senior Director, Communications Legislative and Regulatory Policy. Usually when Mr. Ripley is here, exciting things happen, so welcome, sir.
Before we begin, I would like to remind senators of a number of points. If at any point a senator is not clear where we are in the process, please ask for clarification. I want to ensure that at all times we all have the same understanding of where we are in the process.
In terms of the mechanics of the process, I wish to remind senators that when more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of a clause. Therefore, before we take up an amendment in a clause, I will be verifying whether any senators had intended to move an amendment earlier in that clause. If senators do intend to move an earlier amendment, they will be given the opportunity to do so.
If a senator is opposed to an entire clause, I would remind you that in committee the proper process is not to move a motion to delete the entire clause, but rather to vote against the clause as standing as part of the bill.
I refer to Beauchesne citation 698(6), which notes:
An amendment to delete a clause is not in order, as the proper course is to vote against the clause standing part of the bill.
I would also remind senators that some amendments that are moved may have consequential effect on other parts of the bill. I refer senators, again, to Beauchesne citation 698(2), which notes the following:
An amendment must not be inconsistent with, or contradictory to, the bill as so far agreed to by the committee, nor must it be inconsistent with a decision which the committee has given upon a former amendment.
In the spirit of this statement, it would be useful to this process if a senator moving an amendment identified to the committee other clauses in this bill where this amendment could have an impact. Otherwise, it would be very difficult for members of the committee to remain consistent in their decision making.
Staff will endeavour to keep track of these places where subsequent amendments need to be moved and will draw our attention to them. Because no notice is required to move amendments, there can, of course, and have been no preliminary analysis of the amendments to establish which ones may be of consequence to others and which may be contradictory.
If committee members ever have any questions about the process or about the propriety of anything occurring, they can certainly raise a point of order. As chair, I will listen to arguments, decide when there has been sufficient discussion of a matter or order and make a ruling. The committee is the ultimate master of its business within the bounds established by the Senate, and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.
As chair, I will do my utmost to ensure that all senators wishing to speak have the opportunity to do so. For this, however, I will depend upon your cooperation, and I ask all of you to consider other senators and to keep remarks to the point and as brief as possible.
Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote which, obviously, provides unambiguous results. Senators are aware that any tied vote negates the motion in question.
Are there any questions on any of the above? If not, we can now proceed.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-18, An Act respecting online communications platforms that make news content available to persons in Canada?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Colleagues, is it agreed, with leave, that the remaining clauses be considered in groups of 10?
Hon. Senators: Agreed.
The Chair: Shall clauses 2 to 10 as amended carry?
Colleagues, we have each received a bundle and our list. I will start with C-18-2-14.
[Translation]
Senator Cormier: Thank, you Mr. Chair. Colleagues, I move:
That Bill C-18 be amended in clause 2, on page 2,
(a) by replacing line 34 with the following:
“includes an Indigenous news outlet or an official language minority community news outlet. (média d’informa-”;
(b) by adding the following after line 35:
“official language minority community means English-speaking communities in Quebec and French-speaking communities outside Quebec. (communauté de langue officielle en situation minoritaire)
official language minority community news outlet means an undertaking or any distinct part of an undertaking, such as a section of a newspaper, whose primary purpose is to produce news content and that produces news content primarily for an official language minority community. (média d’information de communauté de langue officielle en situation minoritaire)”.
The purpose of this amendment is to add the definitions of “official language minority community” and “official language community news outlet.” To ensure consistency, the amendment also modifies the definition of “news outlet” to include “official language community news outlet.”
In summary, the definition of “official language minority community” is the same as the one we adopted in Bill C-11, and I quote:
official language minority community means English-speaking communities in Quebec and French-speaking communities outside Quebec.
The definition of “official language minority community news outlet” is based on the definition of Indigenous news outlets and therefore requires the media to provide news content aimed at an official language minority community to qualify. The addition of these definitions is necessary for the next two amendments, one that I will be proposing, and the other that will be proposed by Senator Clement, which will ensure better recognition of official language minority community, or OLMC, spaces.
Recognition of OLMC spaces is insufficient in the bill, and the Senate, in carrying out its role to protect minorities, is wholly justified in adding this vital perspective to the bill.
Thank you, colleagues
[English]
Senator Harder: The government would support this amendment.
The Chair: Any other debate?
All those in favour of this amendment, please say, “yea.”
Hon. Senators: Yea.
The Chair: All against, please say, “nay.”
Accordingly, it is carried. We have amendment 2, which is C-18-2-28.
Senator Clement: Good morning, colleagues. I move:
That Bill C-18 be amended in clause 2, on page 2, by replacing line 28 with the following:
“news outlet makes available”.
What is being removed there is “ . . . to an Indigenous community.” This would allow for autonomy for a news outlet to determine its own target audience and community. It is really important that all news content from Indigenous news outlets be eligible, regardless of target community.
It is important that all Canadians access Indigenous content. Indigenous news outlets should target non-Indigenous Canadian communities as well. I want to just quote from the Truth and Reconciliation Commission Calls to Action under the section “Media and Reconciliation”. Call to Action 84(iii) states:
Continuing to provide dedicated news coverage and online public information resources on issues of concern to Aboriginal peoples and all Canadians, including the history and legacy of residential schools and the reconciliation process.
And Call to Action 85(ii) states:
Continuing to develop media initiatives that inform and educate the Canadian public, and connect Aboriginal and non-Aboriginal Canadians.
It’s just to make the point very clear that Indigenous content should and can be of interest to all Canadians. Thank you.
Senator Harder: The government supports this amendment. It was requested by the APTN in our testimony and it doesn’t alter the functioning of the legislation in any way, so we support it.
Senator Wallin: Yes, just a question that Senator Simons had raised last week when we heard this testimony, which is what constitutes news or information? Because when we had witnesses, they were talking about other kinds of broadcast outlets that were either storytelling or music even in some cases. What is your constraint on this?
Senator Clement: I believe that Indigenous storytelling is news. I believe that news that includes that, includes different forms of how we relate news. Indigenous people will tell you and have told us that their narrative way of producing information is also news. But this section is really about following what APTN has recommended, stating that we don’t need to specify that it has to target an Indigenous audience. This is news that should be available, that should target all Canadians. It really should be up to the Indigenous news outlet to determine its target audience.
The Chair: Are all honourable colleagues in favour of this amendment?
Hon. Senators: Agreed.
The Chair: So carried.
Item 3, colleagues, it’s Senator Simons who is proposing in 2-2-32.
Senator Simons: This amendment — I will read the text of it and then translate it.
That Bill C-18 be amended in clause 2, on page 2,
(a) by replacing lines 9 and 10 with the following:
“distinct part of an undertaking whose primary purpose is to produce news”;
(b) by replacing lines 32 and 33 with the following:
“of an undertaking whose primary purpose is to produce news content and”.
In each of these instances, the phrase being removed is a little clause that says, “such as a section of a newspaper.” I think this is potentially confusing because we are only enumerating one example of one type of news. We just could easily have said news documentaries on a television channel or what have you.
In the interest of clarity, so we’re not giving prejudicial importance to newspapers — and I say this as someone who worked in newspapers for 23 years — there are other kinds of media. This was a concern raised to us by some people from the radio sector. I think taking out that one example which is not edifying will make sure that we have clarity going forward.
Senator Harder: The government is comfortable with removing this example. It was intended as an example and not constraining, but I think the senator has made a good case and I would support the amendment.
The Chair: Anyone else on debate? Are honourable colleagues in favour of this amendment?
Hon. Senators: Agreed.
The Chair: So carried.
[Translation]
Senator Cormier: Mr. Chair, given that we adopted the amendment I proposed, which contained this reference and gave the example of the newspaper, I would ask for consent to come back to it so that we can move and adopt the motion, omitting the newspaper reference, so that everything is consistent. Is my request clear?
Senator Miville-Dechêne[Technical difficulty], but that can be done.
Vincent Labrosse, Clerk of the Committee: Can you please repeat that, senator?
Senator Cormier: In the amendment we adopted, the reference to the newspaper was specified; we adopted my amendment with reference to the newspaper. We just adopted an amendment without reference to the newspaper, so we’d have to come back to this, with the consent of the committee members, so that I can propose the amendment without reference to the newspaper.
So, there is a copy being distributed — with your permission, Mr. Chair.
The Chair: That is fine with me.
Senator Cormier: This copy would correct the amendment that we adopted.
[English]
The Chair: We are reverting back and the motion is being currently distributed.
[Translation]
Senator Cormier: Essentially, it’s on page 2 of the amendment. You will see at the top “any distinct part of an undertaking whose primary purpose is to produce.” So, the reference to the newspaper was removed.
[English]
The Chair: Carried, colleagues.
[Translation]
Senator Cormier: Thank you, colleagues.
The Chair: We are at item 4 in our bundle of documents, at the amendment from Senator Carignan, number CC-C18-2-3-1.
Senator Carignan: Honourable senators, I move:
That Bill C-18 be amended in clause 2, on page 3,
(a) by replacing line 1 with the following:
“(a) the news content, or any substantial portion of it, is repro-”;
(b) by replacing lines 3 to 5 with the following:
“(b) access to the news content, or any substantial portion of it, is facilitated by any means — including an index, aggregation or ranking of news content — other than by the reproduction of a hyperlink to that news content.”.
So, the purpose of the amendment is to avoid having to pay when only the hyperlink is displayed or when people click on the hyperlink. Facebook and Google generally share news content with an image or text excerpt. So, this type of sharing will allow the media to make claims under this amendment, but hyperlinks would be excluded from the amendment. There were several experts who testified before the committee — including Professor Michael Geist — who objected to the notion of making payments only when there was a hyperlink. This goes somewhat against the philosophy of the web.
Clearly, a hyperlink is not enough content for a royalty payment; it’s a reference to an article.
There may be an adverse effect. Jean-Hugues Roy mentioned it in particular. The adverse effect is that Google and Facebook will end up banning hyperlinks, which will mean that the news will be read less. It is better that there are no royalties on hyperlinks and that there are as many hyperlinks as possible so that users can click on the hyperlinks and be directed to the media, where it can promote its content and have advertising. The more we avoid… The more we take away opportunities or the more we make the process difficult by having barriers to entry in the benchmarks, the more we harm the news. So, the idea is to remove the hyperlinks.
In the private member’s bill I introduced in the other meeting, I specifically avoided including hyperlinks for this reason, and this was applauded by the experts.
[English]
Senator Harder: The government opposes this amendment. Bill C-18 does not create a link tax. It captures the way news content is shared online. This amendment would exclude news content shared by link from the scope of the negotiations that are anticipated. It could even allow platforms to avoid the bargaining regime entirely, excluding hyperlinks will only hurt the news organizations when they’re at the bargaining table with the platforms. Senators should know that a similar amendment was defeated in the other place.
Senator Simons: I have great sympathy with the intent of Senator Carignan’s amendment. I agree that hyperlinks should be freely shared. However, I think this amendment does not do precisely what Senator Carignan would like it to do because by excluding links and leaving everything else in, it would basically exempt Facebook but leave Google to carry the entire weight of this proposition.
I think Senator Wallin has an amendment that will get closer to what those of us who have questions about this bill would actually like to see.
With great respect, although I support the intention of this amendment, I can’t support the amendment in this form.
The Chair: Are honourable senators in favour of this amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I think the “nays” have it. Accordingly, the amendment is defeated. We go to Item 5, 2-3-5.
Senator Wallin: At the top of page 3, after line 5, we are proposing an addition.
Despite subsection (2), news content is not made available for the purposes of this Act if it is reproduced or if its access is facilitated in a manner that constitutes fair dealing under sections 29 to 29.2 of the Copyright Act.
This amendment basically comes from two points of view. An open internet and the free flow of information is the foundation of free expression and speech. In fact, the whole point of the internet is access to information.
This bill ends up applying select liabilities to two corporations on information that everyone else is free to use under limitations and exceptions by existing Canadian law — i.e. the Copyright Act — and that is enshrined in international conventions.
Currently, the bill’s definition of making news content “available” amounts to any news found on their respective sites or applications, period. This, plus clause 24, which states explicitly that limitations cannot be used in the bargaining process, would be a charge on the mere existence of information.
We heard from Michael Geist on this issue. He referred to it as a link levy. I come to it as a former journalist, and it makes me very uncomfortable to set this precedent, where anyone could be denied inherent rights to fair use.
This would have implications, as I said, for clause 24 on page 10. I guess we will get to that a little later on.
During the discussions on this, people asked whether this, in essence, kind of guts the bill. But it doesn’t, because the negotiation process covers every angle that you could conceive of, as the parties and the CRTC themselves try to attribute value to things like data or local reporting, the news itself and various things that we have heard witnesses raise specifically on this. The parties involved will determine the value of these through negotiations or arbitration, but copyright limitations and exceptions in the bill explicitly cannot be excluded as it is in its currently written form.
My amendment is simply trying to ensure that you cannot be financially liable for the use of information that falls under fair dealing, which is integral to free speech and expression and the free flow of information.
I would add that, last week, the Government of Canada used this fair dealing argument in its own defence in the Blacklock case that some of you may have read about it.
Senator Harder: The government is opposed to this amendment. The existing fair dealing exception found in the Copyright Act captures news content. In designing the making of available news content by platforms as fair dealing, the scope of the regime would be severely undermined. It would likely result in zero dollars being exchanged between platforms and news outlets.
Bill C-18 is intended to coexist with Canada’s existing copyright framework and has been written accordingly. Clause 24 of Bill C-18 clearly states that limitations and exceptions to copyright under the Copyright Act do not limit the scope of the bargaining process. Applying a copyright lens to news content and the way it is used in this regime will limit its scope, significantly undermine compensation to be paid and ultimately fail to address the imbalances in the marketplace that this bill is designed to balance.
Senator Wallin: Could I hear from Mr. Ripley in terms of what the legal advice was inside the department?
Thomas Owen Ripley, Associate Assistant Deputy Minister, Canadian Heritage: Thank you very much, Senator Wallin. As you noted, later on in the bill, in clause 24, it is explicit that limitations and exceptions to the Copyright Act are not designed to limit the bargaining process. That is because the way the bill was constructed is that it would sit adjacent to the Copyright Act. While limitations and exceptions used by online services would obviously continue to be available for any claim of copyright infringement under the Copyright Act, the bill, as constructed, is an adjacent bargaining framework.
An alternate approach, which has been pursued in some jurisdictions in the world, would be to consider giving news publishers a copyright in their news content and to construct a copyright framework accordingly. The challenge is that without having worked through that entire copyright framework, if this amendment were to be passed, it could limit the scope of bargaining because online services rely on limitations and exceptions to make available snippets or links of news content. The intention of the bill is to require those services to bargain for all the ways they make news content available.
Senator Wallin: To the point, that makes absolutely anything that constitutes information subject to negotiation. There is such a thing such as information knowledge that just exists, that isn’t part of this negotiation. This is supposed to be about news organizations or outlets — or whatever they’re going to be described as — concerned about their content being reproduced, but there is an exchange of ideas and information that goes on. That’s what the internet is. That’s what conversation is. This is a very broad net.
Mr. Ripley: Are you looking for my reaction?
Senator Wallin: Yes.
Mr. Ripley: I wasn’t sure. I didn’t want to presume. Thank you, senator.
The scope of the bargaining framework isn’t unlimited in the sense that it is limited to bargaining between dominant platforms and news businesses as defined in the act with respect to their news content, which later on in the act is, as we know, limited to matters of general interest and reports on current events, including coverage of democratic institutions and processes, et cetera. It does not cover the gamut of all information being made available on the internet but only with respect to a bargaining obligation in that particular context between dominant online services and news businesses.
Senator Wallin: And your comment on whether this actually undermines the inherent right to fair use. What did the lawyers say on that?
Mr. Ripley: The Copyright Act stands intact in the sense that the way the bill has been constructed, it recognizes that this doesn’t affect the scope of limitations and exceptions under the Copyright Act with respect to claims of copyright infringement.
What it does do is that it nonetheless imposes a bargaining obligation on dominant platforms with respect to the making available of news content. To the point of your amendment, they cannot rely on something that they might have otherwise been able to rely on under the Copyright Act to defend or say there is no obligation to pay for that use. The core objective of the bill, as drafted, is to precisely impose that bargaining obligation on them and to require them to bargain with news businesses for the making available of their content.
Senator Wallin: How do you square this with the government’s legal argument that using fair dealing is a defence in the Blacklock’s case?
Mr. Ripley: I won’t comment directly on the Blacklock’s case because I’m not familiar with all the facts of that particular situation. In the case of a copyright infringement, fair dealing or other limitations and exceptions under the Copyright Act remain a valid defence for the use of copyright material as long as you respect those limitations and exceptions. That would continue to be the case even if Bill C-18 were to be passed.
The question that you put on the table with respect to your amendment is whether limitations and exceptions under the Copyright Act should be a way to narrow the scope of bargaining under Bill C-18. The government did consider that question and explicitly in section 24 did indicate that the scope of bargaining should not be limited by available limitations or exceptions under the Copyright Act.
Senator Wallin: They were willing to use this argument. They just don’t want anybody else to be able to use it.
Mr. Ripley: It remains a valid defence for anybody with respect to a claim of copyright infringement. The bill as constructed though is not constructed to be based on giving news publishers a copyright in their news content, the link of the news content, the snippet of their news content. It is more of a competition bill designed to level the playing field in the instance of a bargaining imbalance between news businesses and dominant digital platforms.
The Chair: Is there any senator who wants to enter debate on this amendment? Are honourable colleagues in favour of this amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: My sense is that it is defeated. Show of hands. Those opposed to the amendment please raise your hands. Those who are in favour of the amendment please raise your hands.
It is defeated accordingly.
The Chair: Shall clauses 2 to 10 as amended carry, colleagues — not as amended — carry?
Some Hon. Senators: On division.
The Chair: Carried on division.
The Chair: Shall clauses 11 to 20 carry? Senator Cormier on amendment 11-20 carry? Senator Cormier on amendment 11-5-34 please?
[Translation]
Senator Cormier: Colleagues, I move:
That Bill C-18 be amended in clause 11, on page 5,
(a) by replacing lines 34 to 36 with the following:
“ry, anglophone and francophone communities, and Black and other racialized communities,”;
(b) by replacing line 41 with the following:
“Indigenous peoples, and
(viii) they ensure a significant portion of official language minority community news outlets benefit from them and they contribute to the sustainability of those outlets in a way that supports the provision of news content by and for official language minority communities;”.
The amendment proposes to modify paragraph 11(1)(a), which refers to exemption orders, to add a criterion specifically for official language minority community news outlets. As the bill currently stands, an operator could benefit from an exemption order for its digital news intermediary by entering into agreements with a variety of business models that provide services to diverse populations, including OLMCs. The amendment therefore aims to clarify the clause by ensuring that, in order to qualify for an exemption, the operator must have entered into agreements with a significant portion of official language minority community news outlets.
This amendment, the text of which is based on subparagraph 11(1)(a)(vii), does not take away the rights of any other media. In fact, it provides the CRTC with more details on the interpretation of clause 11 and ensures that the bill is well aligned with its objective.
The Consortium of Official-Language Minority Community Media — which speaks with a common voice for nearly 100 media outlets in official language minority communities in the nine provinces and three territories, and includes French‑language media outside Quebec and English-language media in Quebec, all of which are on these platforms — feel that this amendment is essential to ensure a positive impact on its members. It will provide a major incentive for operators to enter into agreements with OLMC media outlets and thereby help to ensure their vitality. Thank you, colleagues.
[English]
The Chair: If I can for the record have a correction, I asked the committee earlier, shall clauses 2 to 10, and the committee said, yes. It should have been shall clauses 2 to 10 as amended carry, because there was an amendment. Thank you.
Senator Harder: The government would support the amendment as proposed and the consequential amendment thereof.
Senator Cardozo: For my clarification, Senator Cormier, what you suggested in subsection (6), you would be removing the words “official language minority communities.” Is it your view then that these communities are included in the words anglophone or francophone communities?
Senator Cormier: Actually it withdraws from 6.
[Translation]
This deletes from subparagraph 11(1)(a)(vi) the reference to official language minority communities from subparagraph 11(1)(a)(vi). It does not remove references to anglophone and francophone communities in general. It strictly removes the reference to official language minority communities in order to preserve subparagraph 11(1)(a)(viii), which truly identifies official language minority community media outlets.
Senator Cardozo: At subparagraph 11(1)(a)(viii)?
Senator Cormier: Yes, so that does not at all remove the reference to anglophone and francophone communities.
Senator Cardozo: Thank you.
[English]
The Chair: Honourable colleagues in favour of this amendment?
Hon. Senators: Yes.
The Chair: So carried. Item 7, it’s Senator Cormier again, 12-6-34.
[Translation]
Senator Cormier: For the sake of consistency throughout the bill, I move:
That Bill C-18 be amended in clause 12, on page 6, by replacing line 34 with the following:
“out in subparagraphs 11(1)(a)(i) to (viii); and”.
This amendment is consequential to the amendment I proposed earlier. Paragraph 12(1)(c) needs to be adapted accordingly. It sets out one of the conditions necessary to give rise to an interim exemption order, namely when “. . . taken as a whole, the agreements do not satisfy the criteria set out in subparagraphs 11(1)(a)(i) to (viii),” because we have added subparagraph 11(1)(a)(viii).
[English]
Senator Harder: This is a coherence amendment and we would support it.
The Chair: Are honourable colleagues in favour of this amendment?
Hon. Senators: Agreed.
The Chair: So carried. We move to item 8, Senator Miville‑Dechêne.
[Translation]
Senator Miville-Dechêne: Thank you, Mr. Chair. I move:
That Bill C-18 be amended in clause 18, on page 8, by replacing line 20 with the following:
“18 In sections 18.1 to 44, party means, as applicable, an”.
I understand that this is difficult to understand, because unfortunately, in this case, a clause of concordance comes before the amendment that I will propose later. You can trust me, or we can return to this amendment afterwards, if you would prefer.
Senator Carignan: We trust you, but we will return to that.
Senator Miville-Dechêne: So, I am continuing with the following amendment, number JMD-C18-18.1-8-22, where I move:
That Bill C-18 be amended on page 8 by adding the following after line 22:
“18.1 The purpose of the bargaining process set out in sections 18 to 44 is to determine the value that each party derives from the news content of an eligible news business being made available by a digital news intermediary and to determine the portion of that value that will be transferred to the eligible news business.”.
Here we are talking about an exchange of value. I will explain the four arguments that justify this amendment. First, we heard from the former CRTC Commissioner, Konrad von Finckenstein, who told us that in this bill, it was absolutely necessary to —
[English]
— I will switch to English because he spoke in English. He indicated that the bill should spell out the specific subject of negotiation to ensure that both parties to the negotiation and eventually the arbitrators — I will tell you that this is in the bargaining process part of the bill, so both parties have to know exactly what they are negotiating over.
The second argument is witness testimony, and it’s the one of our dear Thomas Owen Ripley himself. On April 25, he declared:
. . . at the end of the day, if you were to go all the way to final offer arbitration and look at the criteria there, it’s about the value exchange between the platform and the news business, and there is no value exchange if the news is not present on the platform.
I’ll tell you that now there is absolutely no definition of what has to be negotiated by the arbitrators. There is nothing in that particular clause. So this is a tentative to try to define or —
[Translation]
— make an attempt to determine the subject of negotiation.
[English]
Pierre-Elliott Levasseur from La Presse declared on May 30:
[Translation]
With respect to the value of technological platforms created for us or which we created for them, there is, in fact, an exchange of values.
[English]
Maybe the most important argument here is the Australian News Media Bargaining Code model. During committee hearings and in government briefings, we were repeatedly told that Bill C-18 was inspired and based on the Australian News Media Bargaining Code. The architect of that code was Rod Sims, whom the committee heard on May 31. Mr. Sims wrote an important paper to summarize and explain the Australian experience and process with the news bargaining code. One passage of this report deals precisely with the question of value exchange between the online platform and the news media. Here is what he says:
. . . the draft only allowed the arbitrators to recognise the value the news businesses provided the platforms, with no reference to the value provided by the platforms to the media businesses. The ACCC structured the draft this way to make the arbitrators’ job more manageable, but this position was not defensible. The ACCC recommended, and the Government accepted, that the arbitrator had to consider the value flowing both ways.
And in reality, the Australian code reflects that. I will quote the code:
In making a determination . . . the panel must consider the following matters:
(a) the benefit (whether monetary or otherwise) of the registered news business’ covered news content to the designated digital platform service;
(b) the benefit (whether monetary or otherwise) to the registered news business of the designated digital platform service making available the registered news business’ covered news content;
This is exactly what this amendment is trying to do today. I will finish by the statement of the minister, who was here during our last hearing.
[Translation]
I asked Minister Rodriguez about the content of these arbitration negotiations. I asked him if his understanding of how Bill C-18 works was the same as for the Australian code, which clearly states that agreements between outlets and platforms must take into account the monetary or other value received by each party. He clearly answered yes, adding:
The platforms will say that the fact that they carry the news media’s content and that it’s on their networks has value — and it does — and the media will say that they do research and that it has value. They’ll sit down together and negotiate based on that.
The government’s intention is clear. We are not talking about a wage subsidy for the media, but rather a negotiation on the exchange of value. This is an attempt to clarify a provision of the bill that I thought was very vague, because here the only word that is mentioned on page 9 about what is being negotiated is the word “matters.” It’s a very vague term. Thank you.
[English]
Senator Harder: The government strongly opposes this amendment because it would likely result in less favourable negotiations for our news outlets. Clause 19(2) currently specifies the scope of the negotiations, which is limited to matters related to the making available of news content by platforms. This intentionally does not set boundaries on what parties can negotiate for, allowing them to negotiate over other elements outside the scope of monetary compensation. Platforms and news outlets may choose to negotiate over items beyond financial compensation. For example, The Globe and Mail’s testimony highlighted that their partnerships included support for Android app development.
The use of fair compensation language was preferred in Bill C-18 to avoid the challenges of determining fair market value. Fair market value may be interpreted in a matter that is less favourable to news businesses and results in significantly reduced compensation. When determining the fair market value of the content made available, the CRTC would be required not only to consider the value of the content itself, but also the value of making it available on the platform. Establishing fair market value for the content would more likely fall under the copyright regime as it would require looking at individual pieces of content to determine their value for specific uses. I would urge senators to oppose this amendment.
[Translation]
Senator Miville-Dechêne: I would like to clarify that my amendment is not limited to monetary value. I am talking about value, and that can encompass several things. I am not talking about fair commercial value, either; I am talking purely about value. Does Mr. Ripley have anything to add about this amendment that further defines negotiation by arbitration, a bit like how the Australian code does?
Mr. Ripley: Thank you very much for quoting me. What I explained is based on the Australian model. If we look at section 38, we see that when an arbitration panel makes a decision, it needs to be based on three factors. The first is value added, monetary and otherwise, to the news content. This pertains to investments that the news intermediary makes to its content, and it also encompasses the contributions that a platform can make to its content. The second factor is the monetary or other benefit that each party receives from the news content.
So we have these questions of value added and benefit. A third factor was added by the House of Commons to remind us that there is imbalance in negotiating power. When we get to the end, we see that the bill is designed in such a way that a final offer in arbitration is really a last resort solution. The aim is for the parties to enter into an agreement before reaching that stage. During the negotiating and mediation process, the decision was made to give the parties considerable leeway in trying to find a solution unless they met the factors in section 11. This is how the bill was constructed.
Senator Miville-Dechêne: Thank you. I will not get into the debate, but I do not think that my amendment contradicts section 38.
Senator Cormier: I appreciate the intent of Senator Miville‑Dechêne’s amendment. My question is for you, Mr. Ripley. If the amendment were adopted, what would the impact be on the smallest media outlets? Would this amendment affect those with less negotiating power?
Mr. Ripley: If the amendment was adopted, practically speaking, we have to apply the value exchange lens that the senator mentioned; this indicates that this lens should be applied to all three stages of negotiation.
So, this affects the negotiation stage, the mediation stage and also, as I mentioned — and I think that is already the case — the final offer stage. So this means that it could limit negotiations, particularly at the mediation stage, where the focus will be on these issues to determine the value exchanged between the two parties.
Once again, to encourage people to try to find a solution that works for both parties, the current bill is constructed in such a way so as to leave some room for the parties to find a solution, although the criteria of section 11 must be met if the platform wishes to apply for an exemption. So, we did not apply this lens at the start of the negotiation process, but only at the last stage. If we get to that point, if an arbitration panel has to make a decision, there are the factors set out in section 38.
[English]
The Chair: Are honourable colleagues in favour of this amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Dasko: During the witness hearings that we had, what witnesses said when they were asked about negotiating factors seemed to be all over the map in terms of what they felt was a proper or appropriate factor to negotiate on.
Some witnesses said, “We want to get a certain percentage of our workforce covered in the negotiations.” One witness said that they were looking for the future workforce and if they received some subsidy or support from the platforms, they would invest in hiring journalists for the future — not actually having any relation to what appears to be in the bill, which is some measure of value for what is being offered or exchanged right now. It was that, “We want to do great things in the future, but we’re not actually doing those things right now.”
Can you just describe how these comments and expectations from witnesses are supposed to be considered in the negotiation process? Is it basically anything that a party puts on the table or is there supposed to be anything that guides the process?
Mr. Ripley: Thank you for the question, senator. The bargaining framework has been constructed in a way that recognizes there is a wide diversity of business models when it comes to news right now in the market. I think the committee has heard from broadcasters, digital-first publications and long‑standing national chains. The intention was to put in a bargaining framework that would allow the parties to come to the table and seek common ground in terms of what a platform sees in the value of that content on its service, as well as what the news business sees in terms of the value that it contributes.
To provide the space for them to try to come to a mutually satisfactory outcome, the platform has to bear in mind that if it wishes to request an exemption at the end of the day, its agreements in totality have to respond to those factors set out in clause 11.
The reality is that depending on the business model in question, those agreements may look different. The nature of the relationship between a heavily digital-first publication will be different than a print-based publication that is making its first forays online. We expect those agreements likely to be different because, again, that relationship is different.
As I indicated to Senator Miville-Dechêne, the idea was to leave flexibility for the parties to find a way forward, with final offer arbitration as the last resort, in which case, both parties — because it’s based on an all-style arbitration mechanism — potentially have either a lot to gain or lose. The bill is constructed in a way to encourage them to try to find a mutually satisfactory arrangement outside of having to rely on final offer arbitration.
The Chair: Are honourable senators in favour of the amendment as proposed by Senator Miville-Dechêne?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I think the “yeas” have it. Recorded vote.
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Yes.
Mr. Labrosse: The Honourable Senator Cardozo?
Senator Cardozo: No.
Mr. Labrosse: The Honourable Senator Carignan?
Senator Carignan: Yes.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dasko?
Senator Dasko: Abstain.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Harder?
Senator Harder: No.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: No.
Mr. Labrosse: The Honourable Senator Saint-Germain?
Senator Saint-Germain: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: Yeas, 7; nays 6; abstentions, 1.
The Chair: Accordingly, the amendment is carried. We revert to Item 8, as per the will of the committee, section 18-8-20.
[Translation]
Senator Miville-Dechêne: It has to do with a consequential amendment; do you want me to reread it? The idea is that, since I added section 18.1, we need to change this sentence, which read “in sections 19 to 44” and replace it with “in sections 18.1 to 44.” This is only a consequential amendment, so we can ensure that the new provision is taken into consideration in the description at the beginning.
[English]
Senator Harder: It is a concordance amendment. I oppose the original amendment, and I will oppose this. I presume the same numbers will apply.
The Chair: Honourable colleagues, is it the will of the committee to adopt this amendment?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 11 to 20, as amended, carry?
Some Hon. Senators: On division.
The Chair: Carried, on division.
Item 10, 27-10-32. Senator Wallin, you have the floor.
Senator Wallin: This amendment also seeks to have clearer definitions of the process that will unfold as a result of this bill. This bill is called the “Online News Act.” Anyone being eligible for the redistribution of wealth should be online or in the business of producing news and/or journalism.
On the House side, amendments were added to scope in stations that may have previously fallen outside the parameters of news production and that should not have been scoped in by the mere nature of being stations. Among these stations, any of them that do not produce news would still be scoped in under the provisions of 27(1)(b) if they meet those criteria as it relates to producing news. Furthermore, it subjects them to 27(1)(b)(iv) which enshrines their necessity to follow the code.
To get back to the amendment, on page 10, replacing lines 32 to 36 with simple language here. It would simply go to “defined in subsection 248(1) of the Income Tax Act.” Then on page 11 we would carry over and delete lines 1 and 2 there as well.
Senator Harder: The government opposes this amendment as it would create, in the government’s view, an unnecessary additional administrative burden on some of the smallest news outlets that are eligible. The government’s position is that all news organizations should be subject to some form of process for the purposes of determining eligibility under section 27.
The other place, senators will know, unanimously supported an amendment to include the categories of broadcasters listed in this subsection, recognizing that they are already subject to rigorous CRTC licensing processes with clear requirements. Indeed, many of the broadcasters captured by those categories are very small and may have challenges finding sufficient resources to go through multiple administrative processes with the CRTC.
To be clear, the current language would not mandate payment from digital news intermediaries for anything other than news content as the scope of the negotiations is clearly outlined in clause 19(2). Accordingly, I would ask senators to oppose this amendment.
Senator Wallin: We do not have actual clarification of what that means. It goes back to our earlier discussion about what news is versus information, versus storytelling. This is part of the problem. Once you put specifics in here under the paragraph of a campus station — not sure what that is; or of a community station — not sure what that is; or of a native station, which is kind of odd characterization, not sure what that is.
Senator Clement: I don’t know if I would use the word “problem.” I suppose I have a question for Senator Wallin. Full disclosure: I worked at a campus radio station when I was a student at the University of Ottawa. It stayed on my CV for years as an experience — probably more years than it should have. It was news. I was reporting on legal trends and on legal cases, on news as seen through the eyes of a student.
Community radio stations, for example, provide news in the accent of the people listening. For example, in Montreal, when community radio stations have people from the West Indies providing information in those accents, that can give a sense of belonging to members of those communities. It’s still news. Why do you feel it absolutely necessary to remove it? What does it take away?
Senator Wallin: I do think there is a huge distinction between information, such as there is a parade on Tuesday, versus stories that might actually carry substantive content that would qualify in any other discussion about news in the real world here what qualifies as news. This is incredibly vague. If we just limit it to those operations — the word “station” is odd as well — that are actually attempting to make a business, even if it’s just the two people who have set it up and they would have an income tax status and it starts to define what it is, they’re an actual business dedicated to this rather than you and I decide this afternoon that we’re going to do a podcast about three things that interest us and make ourselves be qualified. I’m being a bit facetious, but we have to have some rules here that these be operations. If there is going to be this transfer of wealth from the companies to those who take this on, then it has to be what is supposedly reflected in the intent of this regulation, the online news act. That’s why I’m trying to get at these definitions so it’s not just everything under the sun that now qualifies for money from whatever series of sources. We’ve done it in the way the government has handed out money over the last few years. There has been a much stricter definition of who qualifies.
Senator Cardozo: To clarify a couple of things — and this is not to comment one way or the other on the amendment — in terms of campus, community and native radio stations, they’re clearly defined in the work of the CRTC. Campus stations are stations that are on university or college campuses, community or non-profit radio stations across the country. Perhaps predominantly in small towns in Quebec, in large part because the government of Quebec has seen that as an important vehicle, a number of small towns, villages and parishes have their own radio stations. “Native,” of course, is the term used for Indigenous-run radio stations across the country. Some are large; some are small.
Senator Wallin: My question is it says “station.” It doesn’t say “news,” or “native news,” or “news about education,” or “campus news.” I’m looking for definitions to capture what the bill is supposedly intended to do. There are lots of campus radio stations that play music and tell you where the party is. I’m trying to actually keep this focused on the online news act. That’s my concern.
The Chair: I have a quick question for Senator Wallin. I’m against anyone determining what is legit and not when it comes to information. That’s why I have such a profound problem with this bill. However, the way your amendment has been proposed, who would actually be making the determinant decision of what qualifies and what doesn’t in your mind?
Senator Wallin: Well, this gets me back to why we have just used the Income Tax Act there in part. At least it would be a legitimate business operation and that would, therefore, give the companies some entity to deal with because it’s already defined under the Income Tax Act.
The Chair: I appreciate that clarification.
[Translation]
Senator Miville-Dechêne: To add something, under the Income Tax Act, it was an independent committee that decided which media outlets met the definition of a media outlet. So, yes, it is the Income Tax Act, but it was an independent committee that made that decision; it was not the officials. The independent committee gives weight to this definition of media outlet.
The problem with the section as drafted, is that it uses the CRTC licence as a criterion, which makes the bill rather illogical, because community television stations in Quebec do not have a licence, since they are linked to cable operators. This criterion is not based on whether or not you make news, but on a CRTC licence that has nothing to do with news. There’s a problem of logic in the original section.
[English]
The Chair: Are colleagues in favour of the amendment as proposed by Senator Wallin?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: It sounds like the “nays” have it.
Senator Wallin: I would like a roll vote.
The Chair: A roll vote?
Senator Wallin: Yes, thank you.
[Translation]
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: Abstain.
Mr. Labrosse: The Honourable Senator Cardozo?
Senator Cardozo: No.
Mr. Labrosse: The Honourable Senator Carignan, P.C.?
Senator Carignan: Abstain.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: No.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dasko?
Senator Dasko: Yes.
Mr. Labrosse: The Honourable Senator Gold, P.C.?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Harder, P.C.?
Senator Harder: No.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: Yes.
Mr. Labrosse: The Honourable Senator Saint-Germain?
Senator Saint-Germain: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: For: 6, against: 6, abstentions: 2.
[English]
The Chair: Accordingly, the amendment is defeated.
Article 27-11-31, Senator Dasko.
Senator Dasko: I move that Bill C-18 be amended in clause 27 on page 11 by deleting lines 31 and 32. Essentially, this is deleting clause 27(2), a two-line clause. This amendment has to be considered in light of clause 27(1), which is the eligibility clause which says at the very beginning:
27(1) At the request of a news business, the Commission must, by order, designate the business as eligible if it . . .
There are criteria for eligibility, then 27(2) says, “The Commission may make an order under subsection (1) on its own initiative.”
What this amendment does is it removes the commission’s ability to make an order on its own initiative. Therefore, placing in the hands of news businesses themselves the requests; they are the only ones who can become an eligible news organization, according to the bill, if this is removed.
Now, when pursuing this, the reason why it was there in the first place, it wasn’t entirely clear. During discussions with Canadian Heritage, they said to me, “The intention of clause 27(2) is not to automatically designate news organizations who do not wish to be designated.” If that is the case, why is it there?
Why does the commission have the ability to designate organizations as eligible if, in fact, they don’t want to be? If they want to be, they can apply and become eligible, or not. If they don’t want to be, then why should the CRTC have the ability to designate them as eligible if, in fact, they don’t want to be? The rationale there is that there doesn’t seem to be a real reason for why it was there in the first place.
During testimony, a number of witnesses said that they would like to see this clause removed. For example, News Media Canada, the voice of print and digital media industry in this country representing 560 news titles, have requested that this be removed. According to them, the legislation is not meant to regulate news organizations. If they don’t want to participate in this legislative framework, they should have the freedom to make the choice.
Allowing the CRTC to designate a news organization as eligible — and unilaterally subject it to the act — is an infringement on media freedom.
The legislation is intended to benefit the media. If a particular organization does not see it as a benefit, they should not be obliged to participate. That was mentioned by other witnesses who came to speak to us.
Colleagues, we know that some organizations and spokespeople in this business want absolutely nothing to do with this bill; of course, they should have no ability to be designated by the CRTC if they want to have nothing to do with this bill. That is the rationale behind this.
As I said, in pursuing this topic, I didn’t see or hear any strong argument in favour of keeping it. The reason for it to be there in the first place is a bit of a mystery. We have heard from witnesses who would very much like to see this clause removed; that is the reason for my amendment.
Senator Harder: The government doesn’t anticipate any significant consequences to the adoption of this amendment, so I will support it.
Senator Cardozo: I don’t have anything.
The Chair: Are honourable colleagues in favour of this amendment?
Hon. Senators: Agreed.
The Chair: Carried.
[Translation]
Senator Carignan, we are at section 12 — amendment number CC-C18-28-12-19.
Senator Carignan: I move:
That Bill C-18 be amended in clause 28, on page 12, by replacing lines 19 to 22 with the following:
“28 The Commission may not designate the Canadian Broadcasting Corporation or any provincial public broadcaster as an eligible news business under section 27.”.
The purpose of this amendment is to exclude the possibility of receiving funding under Bill C-18 for public broadcasters who already receive money to compete with private broadcasters. Obviously, I support their mandate, and the CBC in particular. The financial measures targeted by Bill C-18 are intended to help struggling private media that have lost advertising revenue to Google or Facebook.
The Parliamentary Budget Officer told the committee that 75% of the funding from Bill C-18 would go to state broadcasters like CBC/Radio-Canada and other major broadcasters. We can improve funding for smaller players by at least taking public broadcasters out of the equation. The idea is not to take from the big to give to the big, but to take from the big to distribute the funds among those who need it most and are in the greatest difficulty.
Several witnesses have supported this position, in particular Paul Deegan, from News Media Canada, who said this — and I share his opinion — and I quote:
There’s a place for the public broadcaster in Canada. They do exceptional work. But they shouldn’t be competing with private enterprises for commercial advertising.
Matthew Hatfield, Campaigns Director at OpenMedia, said the following, and I quote:
In Canada, a lot of the funding looks to be going to the CBC. It’s wonderful and fine to support the CBC, but it’s unclear, when the government could increase their budget if needed, why we should be subsidizing that versus start-up outlets that are not going to be getting support on that level.
Peter Menzies, former Vice-President of the CRTC, stated this in his testimony, and I quote:
… financially sound companies such as the CBC and Bell will have more resources which they can use to improve their market share at the expense of, for instance, the Toronto Star, likely killing it and others.
Professor Michael Geist from the University of Ottawa said this, and I quote:
Candidly, they simply should not be included at all, but if there is a way to formulate it in a manner that one doesn’t harm the desire to create a robust private sector in the news sector, it would be part of it. I’ve talked to a number of independent players who have deep concern where they say the CBC is their primary competitor in their small, local news market, and the idea that they would have to compete not just with public tax dollars from the CBC, but also with Google and Facebook money, has effectively forced many of those independents to participate in the system, they have had no choice to be part of it.
My broader view is that I don’t think it is appropriate here. If you are a supporter of the CBC, your goal is to make it relevant and different from what we get in the private sector, and the way we do that is to ensure that it is the home of access for all Canadians who don’t have to surmount a paywall and don’t have to be concerned about misinformation.
So, the idea is that we can instead use this piece of the pie and distribute it among local media, smaller media and private news outlets that are in trouble and struggling. We have to make sure we rebalance this part of the funding that will come from Bill C-18.
Obviously, having said that, I think it is a question of balance.
[English]
Senator Harder: It comes as a surprise that the government strongly opposed this amendment. CBC and Radio-Canada and provincial public broadcasters offer essential services. Their inclusion in the regime doesn’t guarantee them deals with the platforms, but it’s only fair that all news outlets have the option to come to the bargaining table.
Senators will know that this has been a broadly debated issue in the other place in considering this bill and was rejected multiple times.
Finally, this is a strange view of the taxpayers’ dollar that this amendment would allow taxpayer-funded organizations to not benefit from revenues from the platforms for carrying taxpayer dollar information, but rather themselves make money off taxpayer-funded news sources. Therefore, I urge senators to oppose this amendment.
Senator Cardozo: Just a couple of questions for Senator Carignan. I kind of agree with him in terms of making sure that the smaller players get money and that it does not all go to the bigger players.
Just on the matter of CBC/Radio-Canada, perhaps you could share why we should be excluding CBC and Radio-Canada. You mentioned a couple of other people who had suggested that they not be part of this and that the government give them more money instead. Do you support the government giving CBC and Radio-Canada more money as those other two individuals noted?
[Translation]
Senator Carignan: That is not the purpose of Bill C-18 at the moment. Obviously, I support the CBC; its mandate is essential, as I said. I am a strong supporter of the CBC and its mission. Minister Rodriguez said that he was reviewing the way the CBC is funded.
The Trudeau government announced a $400 million commitment to the CBC to reduce its reliance on advertising. There is a risk of a perverse effect if the CBC also benefits from the revenues of Bill C-18 to the detriment of other media. This will increase the imbalance and may increase opposition to the CBC. There’s a risk, because if you want to take too much, you risk losing too much. I think the purpose of Bill C-18 is to restore balance, not to increase imbalance. Right now, that is a risk.
While I support the CBC’s core mandate — That does not mean we should oppose this and that we should be against the CBC; rather, we should be in favour of supporting a strong press and ensuring a diversity of news sources.
[English]
Senator Cardozo: My hope is then the money they could get from this would get them out of advertising and news, both CBC and Radio-Canada. I leave that as a comment.
The Chair: That’s a lot of money.
Senator Dasko: Well, this is a very serious amendment and, among other things, I noticed that CBC was not here as a witness during our testimony. I wonder Chair, if any members of the steering committee can advise whether CBC was invited to appear as a witness to speak to these issues at this committee.
The Chair: No, they were not invited and they did not ask to appear either.
Senator Dasko: Perhaps they didn’t realize that such an amendment might be on the table. Well, I think they care. I’m sure they care. This represents —
The Chair: I’ll briefly weigh in on this as well. I strongly support Senator Carignan’s amendment. I think colleagues, that this isn’t a question of CBC not being here to be heard, but a question of respecting the spirit of the bill, and if the government is absolutely serious about the spirit of the bill — which I support — is helping struggling news outlets in this country that are suffering, CBC is not one of those outlets suffering. They’re not suffering because they get billions of dollars of subsidies of taxpayers’ money.
Now to have them go back to a pie that we’re trying to create legislation to help struggling journalists and journalism across the country that are not part and parcel of that federal funding right now, to have them dip in there, to be honest with you, it would be gross, to be blunt. That’s my opinion. It has been well documented anyway through the committee’s study.
Are honourable colleagues in favour of this amendment as proposed by Senator Carignan?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I think the “nays” have it. Accordingly, it is defeated.
Shall clauses 21 to 30 carry as amended?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: On division. Carried.
We go to item 13. It is 36-15-11. Senator Gold, the government leader.
Senator Gold: Colleagues, I’m about to move a technical amendment which I’ll explain in a moment to the following effect:
That Bill C-18 be amended in clause 36, on page 15,
(a) by replacing line 11 with the following:
“36 (1) The Commission may, at the request of an arbitration”;
(b) by replacing lines 14 to 22 with the following:
“considers necessary, disclose to the panel any information, including confidential information, in the Commission’s possession that, in the Commission’s opinion, is necessary for a balanced and informed decision-making process, on the condition that the Commission ensures that the arbitration panel or each individual arbitrator that presides over the final offer arbitration does not further disclose any confidential information other than during the arbitration, including by imposing any further terms that the Commission considers necessary.
(2) Each individual arbitrator must take all reasonably necessary measures to ensure that confidential information disclosed to them under subsection (1) is not disclosed other than during the arbitration.
(3) Every individual who contravenes subsection (2) is guilty of an offence and is liable on summary conviction,
(a) for a first offence, to a fine of not more than $5,000; and
(b) for a second or subsequent offence, to a fine of not more than $10,000.”.
The purpose of this amendment, colleagues, is to make a technical change based upon an amendment that was adopted in the other place. The current version of the bill allows the CRTC to share confidential information with the arbitration panel and to put conditions on the entities with which this information is shared. However, the current text of the bill does not provide for any remedies if information is improperly disclosed by an individual or entity. Therefore, this amendment would ensure that the CRTC can impose conditions on members of the arbitration panel for the disclosure of confidential information, and that panel members know their obligations as it relates to confidential information.
Many witnesses have raised the importance of protecting commercially sensitive information throughout the negotiation process, and therefore this amendment would do so by, among other things, creating an offence if an individual panel member does not meet their obligations outlined in section 36. I urge colleagues to support this amendment.
Senator Harder: Definitely I support this amendment and urge others to do likewise.
The Chair: We are surprised, Senator Harder. Are honourable colleagues in favour of this amendment?
Hon. Senators: Agreed.
The Chair: Carried.
Colleagues, shall clauses 31 to 40 carry, as amended?
Some Hon. Senators: Agreed.
Senator Plett: On division.
The Chair: Shall clauses 41 to 50 carry?
Some Hon. Senators: Agreed.
Senator Plett: On division.
Hon. Senators: Carried, on division.
Item 14, Senator Carignan. Item 53-20-16.
[Translation]
Senator Carignan: I move:
That Bill C-18 be amended in clause 53, on page 20, by replacing lines 16 to 18 with the following:
“mation that it requires for the purpose of
(a) considering a request under section 27; or
(b) considering a complaint under section 52.”.
The purpose of this amendment is to limit the CRTC’s power to collect information to confirm the admissibility of press organizations or to investigate a complaint. Many have said, including the CEO and publisher of The Globe and Mail, Phillip Crawley, on May 30, that there is a problem with the extremely broad discretionary power to investigate or the power to collect information. There is a risk of disclosing unnecessary confidential information and undermining the journalistic independence of news organizations. In particular, he said:
The information gathering powers of the CRTC should be limited to information necessary to confirm the eligibility of news organizations, or to investigate a complaint. We feel strongly that open-ended powers to compel information are problematic in the context of news organizations. CRTC should not have powers to compel information from news organizations beyond what is strictly necessary to administer the act. Unlike broadcasters, newspaper organizations are not structured for detailed, ongoing regulatory reporting. We do not want newspapers spending precious resources responding to regulatory requests.
He also said that if such an amendment could be drafted, it would be much appreciated. So, the goal is to respond to this request from the publisher of The Globe and Mail. We also heard from several other witnesses who were concerned about the very far-reaching power of the CRTC, which could undermine journalistic independence.
[English]
Senator Harder: The government opposes this amendment as it would narrow the CRTC’s ability to collect information from news outlets and platforms. Most significantly, it would prevent the CRTC from granting exemptions, as it could not collect data related to clause 11 of the bill. Beyond that, it would severely limit the CRTC’s ability to understand the overall effectiveness of the regime we’re putting in place.
The CRTC regularly handles commercially sensitive information. There are significant penalties for misuse of information gathered. The current text does not give the CRTC the authority to ask news outlets for information irrelevant to the regime. Bill C-18 is designed to regulate platforms, not the news outlets; no fishing expeditions allowed.
Please oppose this amendment.
The Chair: Are honourable colleagues in favour of the amendment as proposed by Senator Carignan?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: I think the “nays” have it. Accordingly, it is defeated.
Item 15, 58.1-25-8. Senator Simons.
Senator Simons: I’ve been uncharacteristically quiet up to now. I shall now make up for it.
This is a new clause to be inserted in section 51.8 on page 25, I shall read it slowly because it is complicated, perhaps.
That Bill C-18 be amended on page 25 by adding the following after line 8:
“Access to Data by a Research Organization
58.1 (1) For the purposes of this section, research organization means a college, university, research institute or any other entity whose primary goal is to conduct scientific research.
(2) A research organization that suspects that an operator has contravened section 51 may apply to the Commission for access to records, reports, electronic data or other documents from the operator in order to conduct research that may assist the Commission in determining if the operator has contravened section 51.
(3) If the Commission determines, on the basis of an application made under subsection (2), that there are reasonable grounds to believe the operator has contravened section 51, the Commission may, by order, require the operator to produce to the research organization, within the time and in the manner specified in the order, for examination or copying, any record, report, electronic data or other document that the Commission has reasonable grounds to believe contains information relevant to the application.
(4) The research organization must, within any period specified by the Commission, analyze the records, reports, electronic data or other documents produced under subsection (3) and provide a report to the Commission that sets out the results of the analysis, including the organization’s opinion on whether the operator has contravened section 51.
(5) The Commission must make the report referred to in subsection (4) available to the public, including by publishing the report on its website.
(6) For greater certainty, no remuneration is to be paid by the Commission to the research organization in relation to any work performed under this section.
(7) The Statutory Instruments Act does not apply in respect of an order made under subsection (3).”.
What does that mean in simple terms? The premise of Bill C-18 is one we have often heard, to level the playing field between the web giants and the news industry. The intention is for the CRTC to act as a referee and ensure the news industry is properly supported. Bill C-18, however, I would suggest, underestimates the power of the web giants and perhaps overestimates the resources of the regulator. We are asking for an algorithmic analysis to define much of what happens under Bill C-18, but do we have the skills and the capacity to do that?
The commission has to ensure that the web giants that control and curate what we see, cannot discriminate against news outlets and disadvantage news content, and those protections are enshrined in clauses 51 and 52. These sections are necessary, as Meta and Google faced litigation all over the world for abusing their absolute power over information flows, often to advantage themselves.
The CRTC has little or no experience in algorithmic auditing and platform investigation. Indeed, they are quite constrained in being able to launch their own investigations. The news outlets that hope to benefit from Bill C-18 are similarly inexperienced, so how could anyone verify that Google and Meta aren’t wrenching their own algorithms such that news outlets get fewer views and that what they owe is artificially deflated or that Google and Facebook are punishing news organizations for the news that they report?
This is incredibly important to me because this bill would give Meta and Google even more power than they already have to influence what we see and what news gets reported. How are we to know they are doing it fairly?
With this amendment, we have looked to Europe for one solution. This amendment is closely based on one in the European Union’s new Digital Services Act, which deals with the regulating of web giants.
Instead of standing up brand new regulators and expecting them to take on multi-billion-dollar multinationals, the EU decided to outsource by turning to academics, and it introduced provisions for researcher access.
What the EU did and what our amendment emulates is to get expertise from vetted accredited researchers. Our amendment allows a research organization to apply to the CRTC to ask for specific commercial data on the relationship between a particular news intermediary — Google or Facebook — and a particular news outlet. If the commission is satisfied with the researcher’s credentials and the scope of the request, it can issue an order to the intermediary requiring data disclosure to that researcher, and the researcher will have a set deadline to publish their findings for public view.
You might be wondering how this deals with privacy. The EU Digital Services Act enshrines rules for data access and scrutiny. The European Commission has recognized that the web giants have systemic impact in facilitating public debate. What they have said in the EU and on the rules of the DSA, the commission has written:
Citizens will not have to take these companies at their word; citizens will be able to scrutinise their actions through the reports of independent auditors and vetted researchers.
You may be saying that there are CUSMA considerations here because we are going to do this to American companies. I think it is important to note that on May 31, the United States and the European Union signed a joint statement of the Trade and Technology Council, whose members include Secretary of State Antony Blinken, the Secretary of Commerce, et cetera, and the joint statement allows the EU and the United States to work together on just such a model. Their joint statement says:
. . . it is crucially important for independent research teams to be able to investigate, analyze and report on how online platforms operate and how they affect individuals and society.
. . . Including the possibility of the disproportionate impacts on vulnerable, marginalized or underrepresented communities.
We must increase transparency and ensure that platforms are more aware of and accountable for the societal consequences of their actions and designs.
We have modelled this amendment very specifically on the European Union’s Digital Services Act.
Senator Harder: Thank you very much. It won’t surprise anyone that the government is strongly opposed to this amendment. The amendment would require both digital news intermediaries and news organizations to disclose confidential information to research institutions.
Many witnesses have raised the importance of protecting commercially sensitive information throughout this study. Unlike news outlets, digital news intermediaries, the CRTC, the independent auditors and the arbitration panels, these institutions are not subject to any requirements in the bill. Furthermore, the disclosure of commercially sensitive information to entities other than the CRTC will raise trade concerns, notwithstanding the comments made about the EU-U.S. agreement. CUSMA is a different framework because the North American nature of what CUSMA provides us is substantially different than the economic and trade relationship with the EU.
The code of conduct established by the CRTC will ensure that any organizations will be able to file a complaint under clause 51 without fear of retaliation if they wish to do so. Hence, I would urge you to oppose this amendment.
[Translation]
Senator Saint-Germain: Thank you, Madam Senator. If I understand correctly, you are proposing an amendment that would copy and paste the legislation governing the countries of the European Union, without having adapted it to the Canadian context. I am indeed concerned about certain considerations, including its impact on other legislation and on the logic of Canadian legislation.
I have not found any organizations that have raised this issue or expressed support during the consultations. Did you hear any testimony in support of your amendment?
[English]
Senator Simons: We didn’t hear testimony specifically on this amendment. We did hear testimony and received briefs, however, from academics who are very concerned about this issue of algorithmic transparency. Sara Bannerman of McMaster University presented a brief, which we all received a few days ago, that underlined some of these concerns and we discussed this amendment with her.
The challenge becomes, as Senator Harder said, that news organizations have a right to complain, but first they have to know what has been done to them. It’s going to be very difficult for a small newspaper chain or an independent radio station to be able to verify whether Facebook and Google are presenting their posts without prejudice. One of the challenges is that the CRTC, in my understanding, does not have the power to instigate an investigation on its own. This amendment would give smaller news organizations in particular the capacity to find out if they are, in fact, being disadvantaged. It’s hard to lay a complaint without evidence if you can’t get the evidence.
I understand what Senator Harder is saying about the privacy of information, but we’re not talking about the kind of information that is subject to arbitration. We’re talking about once an agreement is in place, looking at how it is playing out and whether Google and Facebook are displaying the information fairly. The bill already requires that they must do so, but how do we know if they are?
This would allow us to actually, in certain controlled circumstances, not have the information spraying out wildly, but only accredited and vetted researchers would have access to this information. It would be funnelled through the CRTC. The information would only be used for this explicit purpose.
I grant that the European Union laws cannot just be transplanted into a Canadian legal system, but I think that my greatest fear about Bill C-18 is not that the platforms will quit Canada, it’s that they might glom on to this. We are already seeing the problem in the news coverage of Bill C-18.
Senator Saint-Germain: Thank you very much.
[Translation]
Senator Carignan: I have read your amendment. The definition you give for “research organization” is that of an organization whose goal is to “conduct scientific research.” Then you say that when an organization suspects that an operator — Finally, you are talking about looking for the offence.
I have trouble seeing how we can mandate our universities to start pointing out offences and starting an investigation when they suspect an offence. I think this is a complete departure from the universities’ mandate.
I understand the problem and your concern; I share them, but I do not think it is the right solution.
[English]
Senator Simons: It caught me by surprise as well, but we have been told by the law clerk and the people who have done the research on this amendment that this is the appropriate language. It is the idea of social sciences.
As to the other question, it is the job of the CRTC to make sure that this bill is applied appropriately. The researchers wouldn’t be the ones laying charges. The CRTC would function as a quasi-judicial body, but the researchers would be like expert witnesses, and their expertise would inform the CRTC’s decision-making.
Senator Quinn: I have a question for Mr. Ripley. Has the department looked at the European situation that my colleague has outlined?
Mr. Ripley: Thank you for the question. We certainly have been monitoring the developments in Europe and have been following the Digital Services Act, but primarily, we have been looking at that piece of legislation in the context of online safety legislation with respect to news bargaining. The equivalent EU framework in that context would be their copyright framework giving news publishers neighbouring copyright in their content.
The way the bill is constructed at clause 51 is that it is intended to be a complaints-based mechanism where news businesses come forward with a complaint. There is certainly nothing that would prevent news businesses from engaging outside expertise or researchers to assist them in that complaint. I would also highlight for senators that in clause 68, just as a reminder, that the burden of proof is actually on the platform to show there was no undue or unjust discrimination. Once the complaint has been made, the burden is on the platform to come forward with evidence showing that any discrimination or any preference is not undue.
The Chair: Are colleagues in favour of the amendment as proposed by Senator Simons?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: Those in favour please say, “yes.”
Some Hon. Senators: Yes.
The Chair: Those against please say, “no.”
Some Hon. Senators: No.
The Chair: I think the “nays” have it. Recorded vote.
That was a close call even for the chair, I have to say.
Mr. Labrosse: The Honourable Senator Housakos?
Senator Housakos: No.
Mr. Labrosse: The Honourable Senator Cardozo?
Senator Cardozo: No.
Mr. Labrosse: The Honourable Senator Carignan?
Senator Carignan: No.
Mr. Labrosse: The Honourable Senator Clement?
Senator Clement: Yes.
Mr. Labrosse: The Honourable Senator Cormier?
Senator Cormier: No.
Mr. Labrosse: The Honourable Senator Dasko?
Senator Dasko: Yes.
Mr. Labrosse: The Honourable Senator Gold?
Senator Gold: No.
Mr. Labrosse: The Honourable Senator Harder?
Senator Harder: No.
Mr. Labrosse: The Honourable Senator Miville-Dechêne?
Senator Miville-Dechêne: Yes.
Mr. Labrosse: The Honourable Senator Plett?
Senator Plett: Yes.
Mr. Labrosse: The Honourable Senator Quinn?
Senator Quinn: No.
Mr. Labrosse: The Honourable Senator Saint-Germain?
Senator Saint-Germain: No.
Mr. Labrosse: The Honourable Senator Simons?
Senator Simons: Yes.
Mr. Labrosse: The Honourable Senator Wallin?
Senator Wallin: Yes.
Mr. Labrosse: Yeas, 6; nays 8; abstentions, nil.
The Chair: Accordingly, the motion is defeated.
Item 6, colleagues. Before we get there, shall clauses 51 to 60 as amended carry?
Some Hon. Senators: On division.
The Chair: Carried on division.
Shall clauses 61 to 70 carry? Carried on division.
Shall clauses 71 to 80 carry? Agreed. Carried on division.
Item 16, 84-35-20.
[Translation]
Senator Cormier: This is a consequential amendment, colleagues. I move:
That Bill C-18 be amended in clause 84, on page 35, by replacing line 20 with the following:
“subparagraphs 11(1)(a)(i) to (viii);”.
As I explained, it is a matter of being consistent with the previous amendments. Paragraph 84(c) gives the Governor in Council the power to make regulations pertaining to the interpretation of subparagraphs 11(1)(a)(i) to (viii).
[English]
Senator Harder: As indicated, this is a coherence amendment, which the government would support. I urge you to do so as well.
The Chair: Colleagues, are we in favour of the amendment as proposed by Senator Cormier?
Some Hon. Senators: Agreed.
The Chair: Agreed, carried.
Items 17 and 18 are deleted because, of course, item 12 was defeated. We will move on to item 19, which is 86-36-33b.
Senator Clement: Colleagues, I move:
That Bill C-18 be amended in clause 86, on page 36, by adding the following after line 30:
“(c.01) information relating to the impact of this Act on news outlets that produce news content primarily for diverse populations, including local and regional markets in every province and territory, anglophone and francophone communities and Black and other racialized communities;
(c.02) information relating to the total number of those agreements that involve Indigenous news outlets and to the portion of the commercial value of those agreements that benefits these news outlets;
(c.03) information relating to the total number of those agreements that involve official language minority community news outlets and to the portion of the commercial value of those agreements that benefits these news outlets;”.
I did work in collaboration with Senator Cormier on this one, and he may want to make additional comments. This is the independent review portion of the bill, the annual report, and what these paragraphs do is give the auditor’s report some specific direction. We want to understand the impact of this legislation on various communities. Canadians need to understand the impact of legislation not only on the digital news marketplace but also on various groups. Groups that might have barriers face additional barriers because barriers to full participation are a problem that the entirety of the Canadian population will be affected by. The more data that we have, the more we can understand how this legislation is working or not for segments of the Canadian population.
In the first edition, it is more general. We’re looking for letting the auditor know that there should be an impact statement. In the next two paragraphs, where we refer to official language minority communities and Indigenous, those communities are defined. That language we have seen elsewhere in the legislation, and so in those two cases we can look for more specific information.
This is about making sure that the Canadian population understands the impact of this legislation, particularly as it relates to minority communities, Indigenous communities, Black and racialized communities, to make sure that we understand what needs to be done to make sure that there are fewer barriers so that there is full participation leading to much better education of our population.
Senator Harder: The government is supportive of creating distinct reporting categories with the independent auditor in their reports as well as the minority-language news outlets. But colleagues, as you would expect, my reading of the French has identified a technical error, which I would ask — that’s a joke — the officials if they could comment and correct so that we capture this before adopting the amendment.
Mr. Ripley: Thank you very much, senator. We would note we think it’s a typo, Senator Clement, but subparagraph c.02 in English that says “ . . . that involve Indigenous news outlets . . . .” —
[Translation]
In French, we say: “médias d’information autochtones en situation minoritaire.” We think that the words “en situation minoritaire” should be deleted to ensure consistency.
Senator Saint-Germain: You have identified the error. Thank you very much.
[English]
Senator Harder: I urge senators to support the amendment as amended.
The Chair: Are colleagues in favour of the amendment as proposed?
Hon. Senators: Agreed.
The Chair: Accordingly, it is carried.
Shall clauses 81 to 90 as amended carry?
Some Hon. Senators: Agreed.
The Chair: Agreed. Carried, on division.
Item 18 is deleted because it was codependent on item 84-35-20. That has been deleted. I also see item 20, Senator Carignan’s, is deleted accordingly because it was dependent on 2-3-5 that was defeated. Item 21, Senator Wallin’s amendment, was also codependent on C18-2-3-5, so that is also removed.
The last item I have, item 22, belongs to Senator Miville‑Dechêne, which is 93-39-26. You have the floor.
[Translation]
Senator Miville-Dechêne: I have the honour of proposing the final amendment of our review. I move:
That Bill C-18 be amended in clause 93, on page 39, by adding the following after line 26:
“(6) Despite subsections (1) to (5), any provision of this Act that does not come into force by order before the 180th day following the day on which this Act receives royal assent comes into force 180 days after the day on which this Act receives royal assent.”.
We are talking about six months after Royal Assent. That is what it means. Let me explain the arguments for this change. First, I have to tell you that I did not come up with it, and that it is part of the amendment that was called for by several press groups, both broadcasters and print media.
What had happened is that the House of Commons has amended section 96, which was the section dealing with coming into force, quite extensively by indicating the coming into force of certain provisions in succession. I think the idea was to simplify the work of the platforms, so that people can better understand and act on what was coming.
What we realized was that we had done this, but at the time, it was up to the Governor in Council to decide when the bill would come into force. It is important to remember that this coming into force determines the number of months that platforms have to enter into commercial agreements with media outlets and whether or not they have an exemption.
So the delay between Royal Assent and coming into force would be six months under this amendment, putting greater pressure and a time constraint on reaching agreements, so that the whole thing does not drag on too long. For some media, their financial health is at stake.
So, I think it is quite clear, but if you have any questions, feel free to ask me.
[English]
Senator Harder: The government is comfortable with putting this trip wire in place and I urge you to accept this amendment.
The Chair: Are honourable colleagues in favour of this amendment as proposed?
Hon. Senators: Agreed.
The Chair: Accordingly it is carried.
Shall clauses 91 to 93 as amended carry?
Hon. Senators: Agreed.
The Chair: Carried on division. Shall clause 1 which contains the short list carry?
Hon. Senators: Agreed.
The Chair: Agreed, carried. Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall the bill as amended carry?
Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Carried on division. Is it agreed that the law clerk and parliamentary counsel be authorized to make necessary technical, grammatical or other required non-substantive changes as a result of the amendments adopted by the committee including updating cross-references and renumbering of provisions?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report this bill as amended to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you, honourable colleagues, for your work today in a very efficient fashion. I will report when the clerks provide me the report. If the clerk is diligent, the chair will follow the will of our committee. It will be reported as soon as possible.
(The committee adjourned.)