Heritage MPs could make C-18 better, or much worse

NDP MP Peter Julian has been busy with C-18 amendments.

November 28, 2022

Tomorrow MPs on the Heritage Committee have an opportunity to make the Online News Act C-18 a better bill, or a much worse one.

C-18 boosts the bargaining power of Canadian news businesses to wring compensation out of Google and Facebook from advertising revenue they make on Search and Social Media using news content as an audience draw.

News organizations aren’t the only content creators who can make this claim, but they are the ones Parliament is helping to do so in the name of news journalism.

That’s why the challenge for MPs is to draw the line in C-18 between legitimate journalism on one hand, and “citizen journalism” or political activism on the other.

Last week MPs debated amendments to one way the Bill certifies professional news outlets: by defining the kind of news businesses with whom the Big Tech platforms must reach voluntary agreements to be exempted by the CRTC from formal bargaining and arbitration.

The exemption text in section 11 of the Act allows the government to outsource the unpleasant task of drawing the line between journalists and activists to Facebook and Google themselves. If a platform reaches voluntary agreements with “a significant portion” of organizations that are, in the platform’s opinion, legitimate news outlets, then the CRTC never has to draw the line between an “eligible news business” (ENB) and a blogger like MediaPolicy.

NDP amendments to remove the platforms as the arbiter of journalism organizations by requiring voluntary deals be negotiated with all “eligible news businesses” were voted down.

Tomorrow MPs will debate amendments to the other way to separate the journalism wheat from the chaff: by nailing down a definition of an ENB in section 27(1) that triggers the formal bargaining and arbitration scheme overseen by the CRTC.

There are two points of entry into section 27(1) and official designation as an ENB.

The first door, section 27(1)(a), is automatic qualification as an existing Qualified Canadian Journalism Organization (QCJO), currently restricted to daily newspapers certified by an arm’s length journalist committee for the purpose of federal tax credits.

The second door—- open to all other news media including television companies—- is where MPs can make either a better or much worse definition of an ENB.

Right now section 27(1)(b) establishes the following criteria for an eligible news business:

• The news organization operates in Canada, including having content edited and designed in Canada.

• It regularly employs two or more journalists in Canada.

• It produces news content, defined as reporting on, investigating or explaining current issues or events of public interest.

• Its content is primarily focussed on matters of general interest and reports of current events, including coverage of democratic institutions and processes.

• Its content is not primarily focussed on a particular topic such as industry-specific news, sports, recreation, arts, lifestyle or entertainment.

This definition devised by Heritage officials is serviceable, if not perfect.

It supports news over opinion and communities over political tribes.

It supports the preservation and recovery of newsrooms with enough journalists to carry out proper news gathering.

And it draws a line, even though any line will be arbitrary, between freelance journalists and small publications.

Nevertheless the definition could be greatly improved with an explicit emphasis on professional journalism.

Professional journalism. Aye, there’s the rub.

Professionalism is a problematic descriptor in a craft marked by optional university credentials and non-binding press councils, where legitimate journalism is recognized as traditions and practices, not rules or certifications.

In earlier hearings, Bloc MP Martin Champoux noted the absence in the ENB definition of press council membership or adherence to editorial codes of conduct. Expect an amendment from him this week.

But while the definition of legitimate news organization is probably not perfectible, it could easily be made worse.

That could happen in at least a couple of different ways.

First, there is a move afoot among MPs to water down the threshold requirement of news outlets regularly employing at least two journalists.

Inserting that threshold into the Bill in the first place recognized the advantage of adequately resourced newsrooms over freelance journalists as news gatherers. It also signalled something less than an open invitation to all comers into a government-regulated compensation scheme supporting journalism.

But a practical concern about a “two journalist” rule was raised during hearings: very small rural newspapers could be disenfranchised because they “employ” only one journalist in addition to a proprietor-journalist. MediaPolicy wrote about that problem here and here.

Underdogs being the catnip of Parliamentarians, expect Opposition MPs and perhaps the government to lower the two-journalist threshold, but hopefully not so low that any self declared freelance journalist will be recognized as an eligible news business in their own right. That may not seem so bad to those who picture Chantal Hébert or Paul Wells qualifying as freelancers, but bear with me for a moment.

The second way this could get mucked up is to listen to critics who would repeal the Act’s requirements that an eligible news business must cover news “primarily focussed on matters of general interest and current events” and not be primarily focussed on “a particular topic,” meaning specialty or niche journalism.

Getting wrong either the “two journalist” threshold or the “general interest and current events” criterion is bad enough, getting them both wrong at the same time would be a disaster.

This would throw the door into C-18 wide open to freelance journalists, some of whom might be brilliant beat reporters but also to others who form an army of self-anointed citizen-journalists with an axe to grind on their favourite issue.

Like this page, for instance.

And that would give us a Bill we neither need nor asked for.

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Here is an update on C-18 amendments that have been considered and those yet to be debated.

• Sponsored by NDP MP Peter Julian, the Bill has been unanimously amended to accord special status to Indigenous news organizations through definitions of “news outlet” (Indigenous-controlled and directed at Indigenous audiences) and “news content” (includes Indigenous storytelling as a legitimate method of journalism).

• The CRTC’s criteria for awarding a regulatory exemption to Facebook or Google under section 11(1)(a) was amended to direct the platforms to give special attention to non-profit and Indigenous news outlets when making agreements with a diverse range of news outlets. A Conservative proposal to include “ideology and opinion” into “diversity” was rejected.

• Still on exemptions, the NDP motion to require the platforms to reach voluntary agreements with “every eligible news business” failed. So did a comprehensive CPC amendment which mirrored the NDP amendment and added other detailed requirements including the completion of bargaining within a reasonable time frame; that compensation be comparable between different news businesses; that small businesses are able to negotiate with adequate information, and others. These additional exemption criteria were rejected by government MPs but couldstill end up in future cabinet regulations that are authorized under section 11(1)(b).

• A heads up amendment was proposed by Peter Julian and adopted: it will provide that the cabinet order that confirms the voluntary agreements and the platform exemption must run for five years. This is likely a response to Facebook’s public messaging casting doubt on its willingness to renew some of the voluntary agreements it already has in the US and Australia. On the other hand the exemption order will shut out start-ups that miss out on negotiations for up to five years.

• The CPC failed to get support for establishing a revenue threshold below which smaller platforms —-Twitter? Mastadon?—-which don’t exploit market power over news organizations would not be obliged to participate in the C-18 compensation scheme. Former CRTC Chair Konrad Von Finckenstein has made a good regulatory argument in favour of doing so. The cabinet still has the power to create such a revenue threshold under section 11(1)(b).

• A series of mischief making amendments from the CPC were rejected. They sought to advance amendments affirming the supremacy of the copyright and intellectual property law that have been deliberately limited in C-18.

Still to come are amendments on key sections of the Act governing:

• the recognition of eligible news businesses and news outlets, including whether CRTC-licensed community outlets “pre-qualify.”
• Update 29/11/22: the Heritage Committee unanimously adopted an NDP motion to pre-qualify CRTC-licensed community news outlets.
• Update 2/12/22: the Committee amended the “two journalist” rule to include proprietor-journalists and family members.).
• Update 6/12/22: the Committee amended section 27 to require that news outlets either belong to a recognized press council or “has its own code of ethics whose standards of professional conduct require adherence to the recognized processes and principles of the journalism profession, including fairness, independence and rigour in reporting news and handling sources.”
• Update 6/12/22 – the Committee adopted a third category of eligible news organization, indigenous news outlets that “produce news content that includes matters of general interest, including coverage of matters relating to the rights of Indigenous peoples, including the right of self-government and treaty rights,” essentially removing the two-journalist rule for indigenous news outlets.

• the timetable for bargaining, to guard against delay. (Update 29/11/22: the NDP motion was adopted)

• a Conservative amendment to disqualify the CBC from compensation. (Update 6/12/22: the motion was defeated).

• publishing the details of voluntarily negotiated or arbitrated deals on the CRTC website. (Update 9/12/22: all NDP motions to publish the details of negotiated agreements were defeated which will prevent news organizations from benchmarking their expectations against comparable deals. A government amendment to allow the Commission to release this information to arbitrators, in confidence, passed.)

• competing visions of the undue preference and ranking discrimination provisions from the government and the Conservatives. (Update 9/12/22: A government amendment significantly scaled back the Bill’s open-invitation to challenge Google or Facebook’s news ranking decisions. The amended procedure limits regulation to changes in news rankings that are retaliatory against news organizations or otherwise undermining the bargaining between them and the platforms.)

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Also from MediaPolicy.ca Must it be war? A peace proposal for C-18 – October 26, 2022

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