Does the Competition Bureau care about the Meta news throttle?

August 9, 2023

One thing you can say for Competition Bureau Commissioner Matthew Boswell. He likes a big target. He fought the Rogers-Shaw merger to the bitter end, lost in Court, and didn’t apologize for trying.

Now we may see what he might do about foreign owned web giants that are several times the size and market power of Rogers in response to a request from Canadian news organizations —broadcasters, news publishers and the CBC—- asking the Bureau to open an abuse of dominance investigation against Meta for blocking Canadian news on Facebook and Instagram. They want the Bureau to order Meta to stop the throttle.

The request cites Meta’s 70% dominant position in news distribution and digital advertising over social media platforms. Its domination of social media impacts 25% of news organizations’ access to Canadians on all platforms and the advertising revenue that comes with it. Meta’s news throttle will harm many news organizations (who compete with Meta for digital advertising) and possibly put some out of business.

There aren’t a great many competition law experts in Canada: two experts who could hardly be tagged as defenders of Big Tech, Keldon Bester and Vass Bednar, have publicly expressed skepticism about the legal merits of the complaint under the Competition Act as it is currently drafted.

The University of Ottawa’s Jennifer Quaid, whose opinions are to be sought in competition matters, was diplomatic in her comments this morning on CBC radio, acknowledging only that the complaint is well drafted.

There will be some close legal arguments around defining “the market” in which the alleged anti-competitive news throttle has occurred. If the Bureau decides that Meta does possess sufficient market dominance in either news distribution and/or the advertising revenue it generates, the remainder of the legal requirements to prove the news throttle is an anti-competitive practice and harms competitors may fall like dominoes. They did in France in 2020 after Google responded with its own news throttle to a law similar to Bill C-18: the French competition bureau found Google culpable of abusing its dominant market position and ordered an end to the news block.

Google’s position in Canadian news distribution and digital advertising is at least as dominant in Search as Meta is in social, so this new complaint is for Google’s benefit as well.

As I have posted previously, the Big Tech revolt against Bill C-18 is a nine-inning game and we are probably in the middle innings. There will be more parry and thrust before it’s over.

Two weeks ago Meta Canadian spokesperson Rachel Curran told participants at policy event in Québec that the Heritage Minister’s announcement of a regulatory scale for payments under C-18 would not end Meta’s throttle but, in the next breath, stated that she was “super-optimistic” that the federal government might repeal C-18 or amend it in the House of Commons.

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