Catching Up on MediaPolicy: the lake edition.

September 2, 2024

Hola from Sharbot Lake, Ontario.

ICYMI

Last week MediaPolicy responded to policy arguments suggesting Netflix and the unregulated US video streamers have boosted Canadian content with a rising tide of production investment over the last ten years.

As it turns out, not so much. You can read about that here.

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As of this week, Pierre Poilievre’s  August 23rd upload of his by regulated broadcaster TLN Media interview ——replete with describing Liberals as “wackos,” “radicals” and “extremist socialists”—-remains on Facebook, despite the Meta ban on Canadian news.

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I wrote last week about the conservative movement’s varying opinions on defunding the CBC. 

A good addition to the discussion is a National Post interview with conservative journalist and book publisher Ken Whyte who most definitely does not want to defund the public broadcaster.

I think Whyte puts his finger on the pulse of CBC hating: what he describes as the “lack of ideological diversity” that results in conservative-minded voters not seeing themselves in the CBC’s media mirror.

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MediaPolicy recently offered an overview of Canada’s $900 million Digital Services Tax (DST) and the American strategy to overturn it.

Last week the White House announced it was moving the impasse over the DST from rhetoric to a formal trade dispute under CUSMA. The US Trade Representative’s press release is sedate and the Canadian reply even more low key.

With a federal election in November between the Democrat ticket headed by Vice-President Kamala Harris and the protectionist Donald Trump, it is not surprising that Democrats don’t want to be caught on the wrong side of an America-first trade issue.

This development will make Big Tech happy. Those digital companies and their Congressional allies are resisting the international tax treaty negotiated by President Joe Biden with OECD nations to curtail Big Tech profit-shifting to low-corporate tax jurisdictions. If ratified by US Congress, the treaty would make the DSTs enacted in Canada and across Europe unnecessary.

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Big Tech is turning the tide against government regulation enforcing mandatory licensing payments for online news.

In Australia, Facebook continues to defy regulation by refusing to renew its 2021 licensing agreements with news media organizations.

The Australian government has not taken any action and Meta has not had to make good on its threat to banish news from its platform. Meanwhile, Google is renewing its agreements but according to reports seeks to reduce the payments dramatically.

In California, a state law mimicking Canada’s Bill C-18 seemed on track until  Governor Gavin Newsom announced an agreement in principle with Google (but not Meta) to withdraw legislation if Google makes more contributions to Californian journalism (the amount described by the Sacramento Bee’s editorial page as a “relative pittance.”)

Reports of the tentative deal provide a flurry of dollar figures for news funding from Google (including current voluntary news payments), new funding by the state government, and possibly contributions from other participants.

Based on California’s population count (comparable to Canada’s 40 million) it certainly looks like Google will be paying at a rate much lower than in Canada (which was much lower than Australia).

The Californian agreement bears a resemblance to the Canadian settlement with Google last November with less than expected Google payments being supplemented by state government funding.

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It’s not all roses for Google. 

In the wake of last month’s US federal court ruling that its Search product is an illegal monopoly, the restaurant search service Yelp has filed a lawsuit against Google for allegedly downgrading Yelp recommendations in favour of Google’s preferred search results.

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It’s not all roses for Meta, either.

The US Third Circuit Court of Appeal may have changed the course of the social media business model by making TikTok, Meta and other platforms liable for harmful content distributed and promoted by their algorithms. 

In a case involving a 10-year old girl who accidentally killed herself after viewing a “blackout challenge” video on her curated “for you” TikTok feed, the Court ruled that the 1996 US federal law that has shielded online services from liability for harmful third party content is not a “get out of jail free” card for social media platforms promoting it.

The case will undoubtedly go to the US Supreme Court.

Canada has no equivalent of the US liability exemption and the Liberals’ Bill C-63 is designed to force social media platforms to deal with harmful content. 

If you want to get a more granular account of the ruling, and its implications, here is Matt Stoller’s Substack analysis.

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Two years ago the CRTC changed course on its 2015 hands-off policy that deferred to cable companies refusing to carry small independent TV services if those channels were adjudged by the cable company to be poor earners.

The soccer television service OneSoccer holds a modest inventory of broadcast rights for national Canadian soccer, perhaps enough to warrant a shot at commercial success that might follow a carriage deal with Rogers. At the time, MediaPolicy wrote about that here.

In granting OneSoccer an unlikely win over the Rogers Goliath, the Commission was probably sensitive to the fact that the old policy had been superseded by the Commission’s approval of the Rogers-Shaw merger that made Big Red the dominant cable company in English Canada, at 47% market share.

But as MediaPolicy concluded, OneSoccer winning carriage on Rogers was one thing. Negotiating fair rates was another.

And so here we are a year and, most likely, a failed negotiation later: Rogers is now refusing to implement the CRTC’s decision because OneSoccer’s ownership structure when it commenced its litigation may not have been Canadian controlled (it’s since been corrected).

The Commission is satisfied with the ownership arrangements, but Rogers wants to litigate it.

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