The vexing ‘original news’ problem of Rebel News and Bill C-18

November 30, 2022

When the Heritage Committee meets Friday it will begin debate on amendments to Bill C-18’s section 27(1)(b). That is the definition of an ‘eligible news business’ that qualifies a journalism outlet for bargaining rights with Google and Facebook. MediaPolicy posted about this on Monday.

A test case of such a news organization would be Rebel News (there might be others, including those on the Left).

Rebel News got punted earlier this year from the federal Qualified Canadian Journalism Organization (QCJO) program for journalist wage subsidies. The Independent Advisory Board on Eligibility for Journalism Tax Measures decided that Rebel News no longer met the Revenue Canada directive on “original news” reporting.

That Revenue Canada ruling gives us some insight into what might (or not) occur under an unamended section 27(1)(b).

To refresh your detailed recollection of section 27 (reproduced at the bottom of this post), there are two ways for a news organization to qualify for bargaining rights under Bill C-18. 

The door marked ‘section 27(1)(a)’ doesn’t specify any journalism criteria. Rather it rubber stamps the eligibility of any online news site (television is excluded) already granted “QCJO” status by Revenue Canada’s arm’s length Advisory Board. On Tuesday, Heritage MPs amended that section to include pre-qualification of CRTC licensed community TV stations.

The other door marked ‘section 27(1)(b)’ spells out the CRTC’s criteria for ‘eligible news business.’ It gives the CRTC interpretative guidance but is missing some of the harder rules of the QCJO program, namely a percentage of journalist time spent news gathering and a requirement for ‘original news content.’

When the aforementioned Advisory Board yanked Rebel News’ QCJO tags it focused on the lack of original news under section 248(1)(a)(v) of the Income Tax Act. Here is the relevant text in the denial letter:

[As required by section 248(1)(a)(v),] the Advisory Board found that Rebel News produces content which is of general interest, including coverage of democratic institutions and processes, and not primarily focussed on a particular topic. However, the Advisory Board’s assessment is that Rebel News does not provide original news content, on the basis that the content was found to be largely opinion-based and focused on the promotion of one particular perspective.

The term original news content is not specifically defined in the [Income Tax Act]. To assist with the interpretation of the term, and to ensure transparency, the Guidance on the income tax measures to support journalism (the Guidance) is published on Canada.ca. The Guidance explains:

2.27 The original news content of an organization generally refers to reports, features, investigations, profiles, interviews, analyses and commentaries that are:

…

(c) based on facts and multiple perspectives actively pursued, researched, analyzed and explained by a journalist for the organization;…

Further, section 2.36 of the Guidance provides:

2.36 Original news content should be based on journalistic processes and principles, which include:

…

(b) a consistent practice of providing rebuttal opportunity for those being criticized and presenting alternative perspectives, interpretations and analyses;…

The Advisory Board found numerous examples of curated content which is also not considered original news, and is contrary to sections 2.34 and 2.35 of the Guidance which state:

2.34. The rewriting, translation, reproduction or aggregation of news from external sources (including articles from news agencies, a current or previous issue of the same publication or any other publication) would not be considered original. Content produced in such a manner, by or for an organization, will factor into the determination of whether the organization is engaged in the production of original news content.

2.35. In addition, lightly edited reproductions of news content would not be considered original news content. For example, an article that repeats material from a news release with no evidence of further independent research and no additional facts, third party perspectives, or context, would not be considered original news content.

Our review of Rebel News’ application reached the same conclusions as that of the Advisory Board, namely, that Rebel News is not engaged int he production of original news content that meets the requirements of the Act.

Director General, Legislative Policy Directorate, Revenue Canada

For full appreciation of Revenue Canada’s Guidance document, the Director General’s letter might also have quoted section 2.33 which signals the primacy of news gathering over opinion giving:

2.33. The term original news content includes content for which research, writing, editing and formatting are conducted by and for the organization. Therefore, whether news content is original depends on the active involvement of a journalist in its creation. Original news content is produced through gathering facts and should show evidence of first-hand reporting, such as independent research, interviews, and fieldwork. For example, a news article or report about an event would be original if it is written or reported by a journalist and is based on first-hand knowledge that journalist gained by conducting independent research, attending or witnessing the event, or interviewing people who organized, attended, or witnessed the event.

In the end, the significance of Revenue Canada’s disqualification of Rebel News from the QCJO program is that its content lacked original news, especially:

• Reporting based on facts and multiple perspectives actively pursued, researched, analyzed and explained. 
• Original news gathering, as opposed to reporting on reporting by others.
• Giving space to alternative or rebuttal views, presumably in opinion writing.

Putting aside the incendiary reputation of Rebel News, what is instructive to Heritage MPs considering section 27(1)(b) on Friday is the journalistic standard of ‘original news’ as expressed by Revenue Canada in its Guidance document. 

You won’t find the term ‘original news’ in section 27(1)(b), the portal for journalism companies to apply for official status as ‘eligible news businesses’ under Bill C-18.

You will find ‘original news’ under section 31 which is the opportunity for Facebook and Google to ask the CRTC to disqualify certain ‘news outlets’ operated by CRTC certified eligible news businesses —for example, a particular news title published by Torstar or Postmedia— if the news outlet’s content does not meet a number of tests, including original news reporting.

It’s an odd, backwards way to draft a statute. It contemplates the CRTC certifying a news business as eligible under section 27(1)(b), subject to Facebook or Google challenging a particular news outlet (which in the case of independent news organizations may be the same thing) as lacking original news content under section 31(2).

Something for MPs to chew on.

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