March 11, 2023
Yesterday morning MediaPolicy posted here to bring you up to date on the reaction to Heritage Minister Pablo Rodriguez’s rejection of the key Senate amendment to Bill C-11 limiting regulation of social media posts.
The same post updates you on CRTC Chair Vicky Eatrides’ dramatic re-boot of wholesale ISP regulation.
Yesterday afternoon Google Canada representatives appeared under summons at the Commons Heritage Committee to explain themselves on account of Google’s six-week throttling of Search results for Canadian news articles. The test, which ends March 16th, affects 1.2 million Canadians including pro rata thirteen Members of Parliament.
But today the focus shifts to Meta which told the Globe and Mail last night, in a renewed threat, that it will permanently block news posts on Canadian Facebook accounts should Bill C-18 pass the Senate. It was unclear from the Meta statement —-expressed in its most categorical terms yet—if the blocking of news would include breaching its existing commercial agreements with numerous publishers and deleting the pages of hundreds of Canadian news outlets.
Both companies used similar tactics in Australia two years ago before legislation was enacted requiring compulsory licensing payments for news posts. The legislation requires news outlets to prove that the platforms’ monetization of their news content exceeds the value of free distribution.
C-18 is modelled on the Australian law.
Meanwhile, the Heritage Committee’s hazing of Google representatives was a debacle.
Not surprisingly, Google’s American chief executives refused to obey the summons that has no extraterritorial effect (although they visited Ottawa previously to lobby against C-18).
Instead Google sent Canadian Vice President Sabrina Geremia to bob, weave and prevaricate in her answers to questions about the news throttle and whether it was done to influence votes in the Senate.
It also became clear that Google was defying the summons to provide the Committee with internal e-mails and texts related to the throttle.
Mid-way through the proceeding, MPs unanimously voted to require Geremia and her policy colleague Jason Kee to swear witness oaths in hopes of getting less mendacious answers. It didn’t change much.
This caused MPs to tee off in some memorable moments: here is Conservative MP Kevin Waugh doing his disappointed grandpa thing and Liberal MP Chris Bittle channeling Johnnie Cochran:
Several MPs pointed out that Google’s failure to notify the unsuspecting 1.2 million Canadians of the news throttle meant they were unaware of breaking news, potentially safety related.
Google’s Geremia did her best to state what the web giant wants.
It wants C-18 dead.
Instead, it would like the cost certainty of contributing a negotiated lump sum to a Canadian News Fund. To that end, Kee pointed to a deal that Google signed with Taiwan earlier this week.
The serendipitous agreement is notable for its cost certainty but also its price: $3 million USD annually for three years. That compares to the voluntary compensation agreements signed by Google in Australia —with a population similar to Taiwan—- reputedly worth around $100 million USD per year.
Geremia and Kee provided an inventory of objections to C-18.
Their main objection was to ‘payment for links.’ That’s a reference to a key provision in C-18 (and the Australian legislation) that scopes in news content ‘made available’ in Search results as opposed to the full alphanumeric text posted on the Results page (its also unclear how video news could be captured other than through ‘links’).
The debate over the trope ‘payment for links’ can be saved for another MediaPolicy post.
But what Google representatives claimed yesterday was that ‘made available’ means C-18 requires platforms to reward news outlets for each link posted, incentivizing media outlets to flood the Internet with a high volume of ‘click bait’ and low quality journalism.
Concerned about unlimited liability for each link to worthless news content, Geremia implied C-18 metes out compensation to news outlets at a fixed ‘per link’ price.
The Bill does no such thing.
First, it allows Google and Meta a crack at negotiating a lump sum for all news content provided by news outlets either as a group or individually (as they did in Australia). Practically that means Google can negotiate a series of News Funds.
If that negotiating opportunity doesn’t work out, an arbitrator will decide what a news outlet’s body of platform-linked journalism is worth (minus the free distribution) and there is no inkling of a ‘per link’ tariff in this key provision of C-18:
Factors
38 An arbitration panel must take the following factors into account in making its decision:
(a) the value added, monetary and otherwise, to the news content in question by each party, as assessed in terms of their investments, expenditures and other actions in relation to that content; and
(b) the benefits, monetary and otherwise, that each party receives from the content being made available by the digital news intermediary in question.
Another Google allegation is that House amendments to C-18 force the platforms to compensate certain news outlets even if they don’t produce news.
Again, this is false.
Likely the Google claim is a reference to amendments that pre-qualify campus and community news organizations as legitimate news outlets, as well as Indigenous news outlets, similar to the Bill’s pre-qualification of the many news outlets that have met the test of a legitimate news outlet under the government’s ‘QCJO’ aid to journalism program.
Those amendments do not however relieve those news organizations of being able to point to a body of news content that is of net benefit to the platforms under section 38, quoted above.
We could go on but that’s enough on C-18 for a Saturday morning.
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