By Ashley Knoblauch, 2L
On April 5, 2022, legislators introduced Bill C-18, or the Online News Act (the “Act”), in Canada’s House of Commons. The Act’s purpose is to improve “fairness in the Canadian digital news marketplace” by regulating digital platforms, such as Meta’s Facebook or Google, where news content is shared. Under the Act, digital platforms that “reproduce or facilitate access to news content” would be required to pay news outlets for news content shared on their sites. Platforms may form payment agreements with news outlets. In the case a payment agreement cannot be reached, “as a last resort” one party may initiate arbitration directed by the Canadian Radio-television and Telecommunications Commission.
The Act will apply to a digital platform (including “[s]earch engines and social media services”) only if there is “a significant bargaining power imbalance between” the platform where news is shared and the outlet that produced the shared news content. According to Canada’s Minister of Justice, whether a power imbalance exists “will be determined according to statutory criteria” that includes the platform’s size, “whether it occupies a prominent market position and any regulations made by the Governor in Council.”
The Act comes in the wake of similar legislation implemented in Australia. In 2021, Australia enacted the News Media Bargaining Code to “address bargaining power imbalances between Australian news media businesses and digital platforms, specifically Google and Facebook.” To date, Australia has not designated any digital platform as “subject to the obligations under the code” as companies including Google and Meta entered into commercial agreements with news outlets.
While some news outlets support the Act, which is estimated to provide $329 million annually to outlets, others are concerned it will not provide the intended support. For instance, a news outlet must “regularly employ two or more journalists in Canada” to be eligible to receive funds under the Act. This requirement may exclude local news, startup, and other outlets that employ a single journalist.
Google and Meta have also expressed concerns. Google states that the Act “will make it harder for Canadians to find and share trusted and authoritative news online” and fears the legislation would require the platform to “pay news businesses that don’t meet journalistic standards.” Meta claims the bill “misrepresents the relationship between platforms and news publishers” because Canadian news outlets willingly share content “from their websites on Facebook to reach a wider audience that leads to increased readership of their stories.” In addition to warning that it may “remove news content from Facebook in Canada” if the Act passes, Meta made a similar warning in response to a bill presented to the United States Congress: the Journalism Competition and Preservation Act. Introduced by Senator Amy Klobuchar, the American act would establish a process by which news outlets “may collectively negotiate with covered online platforms” regarding those platforms’ use of news outlets’ content.
The House of Commons passed the Act on December 14, 2022. The Act is now before the Senate and will be considered among a host of other bills this spring.