Author: Howard Law

December 31, 2018

If you were born in the last century, you remember the days when facts were the main course. Opinion was dessert.

Things are different now. News is laden with analysis. Analysis is full of opinion. Opinion means an evisceration of political enemies. In America, where they are first in all things, cable TV is a war zone of lacerating attacks. You watch the media outlet that comfits you, no more. Call it poli-tainment. And that is before you consider the stuff trafficked on Facebook.

It may be coming to your news source too. Writing opinion is cheaper than most news gathering. We live in a media world of diminishing revenues and fewer journalists. “Opinion is where we get the most engagement,” a Postmedia executive told me matter-of-factly when I bemoaned the Toronto Sun’s shrinking coverage of hard news. They say facts matter, but not as much as subscription and advertising dollars.

We love skewering the beliefs of the people we disagree with, so much we would often rather not hear about the facts. If only our world was in good enough shape to allow us the indulgence of skewering our political foes. Perhaps getting it right on the existential issues of the day —-climate change, war and peace, and the defense of democratic institutions—- matters more.

Here’s a toast to 2019 and a year of reporting the facts. We are going to need them.

November 23, 2018

In the wake of the federal government throwing a lifeline to civic journalism last week, let’s take a quiz about perception of media bias.

Here we go. Rank in order of importance the following contributions, or alleged contributions, to perceptions of media bias:

1. Jerry Dias, the President of the 315,000 members of Unifor —which includes the majority of the nation’s approximately 5,000 unionized journalists— speaks out daily on the major policy issues of the day affecting workers’ well-being, generally on the left of the political spectrum and therefore opposed to most Conservative politicians.

2. The wealthy and nearly unanimously conservative owners of all Canadian newspapers — who enjoy the power to fire or side-line their journalists at any time— run daily editorial columns and at election time endorse a political party.

3. Some journalists use social media to tweet out strongly-worded personal opinions about the issues of the day, politicians, and other newsmakers on topics about which they write.

Let’s hope that exercise was enlightening.

The debate about the federal government’s rescue package for civic journalism will continue regardless.

Partly that’s because mainstream media have long enjoyed what some perceive as a monopoly on public voice: the only megaphone in town. Even in the age of social media that resentment hasn’t abated, only intensified. That should be the clue: the hullabaloo about media bias is not about monopolizing megaphones (there are lots of them), it’s more about the spreading tribalization of public discourse. Thank you, Facebook.

Most journalists wish the attention would just go away. They want to get on with their jobs. And the job, as each journalist believes to their core, is to hold powerful people and institutions to account. To be your watchdog.

If only some of the media owners would take that to heart.

The 2015 federal election comes to mind. Recall that Postmedia CEO Paul Godfrey ordered all of his Editors in Chief across the country to endorse Stephen Harper’s re-election. The nation’s biggest news chain even ran front page Election Day ads from the Harper campaign using graphic elements that suspiciously resembled Elections Canada.

More recently in May of this year, an accidentally leaked memo written by the Toronto Sun Editor-in-Chief named a list of his journalists as part of an Election-year news team poised to attack Liberal Premier Kathleen Wynne. The rank-and-file journalists were mortified by the stain on their reputations. The Sun refused Unifor’s demand for a retraction in defense of journalists’ independence.

Want to re-take the quiz?

There is no question the controversy about media bias gets under the skin of all journalists. No group in society thinks of themselves less of a group, than journalists do. They are the lone wolves. They do not belong to any tribe (except maybe the free food tribe). Any suggestion that someone else’s opinion is rubbing off on their reputation drives them around the bend.

Here’s where we can share common ground. Let’s keep talking about media bias. Only, let’s make sure it’s an open dialogue with open minds.

June 11, 2018

“If you profit, you contribute—there is no free ride” Heritage Minister Melanie Joly, June 3 2018

The battle for Canadian cultural sovereignty is on. And no, it’s not a battle against Donald Trump. It’s a debate among Canadians.

Justin Trudeau’s Liberals have come down firmly on the side of Canadian content creation. After ragging the puck for two years, the cabinet ministers responsible for broadcasting and telecommunications announced their elegant solution to the apparent conflict between Canadian content and opponents of regulation.

That solution is to spread out the burden of cable industry’s contributions to Canadian content and local news —currently a $400 million annual tithe on revenue— to all players in the media universe. That means domestic Wireless and Internet providers as well as foreign video streamers like Netflix.

To the extent that the cable companies have been able to price Canadian content levies into their monthly bills, in the future we will see cable TV customers pay less, while others begin paying a much smaller amount. As CRTC Chair Ian Scott suggested, that would mean a fifty cent monthly increase on the average broadband bill of $47.

The Liberals are at pains to reassure voters this rejig of Canadian media will be cost neutral.

“For me, a critical issue is making sure that Canadians do not pay more,” Industry Minister Navdeep Bains said on June 5th. “This is really around quality, coverage and price, and price is something that Canadians have expressed as a concern.”

A series of government policy moves intended to increase competition among wireless providers followed, as did a ribbon-cutting on an industry initiative offering cheap broadband access for low-income Canadians. It may have taken a while, but it seems the Liberals finally have their ducks in a row on the media and telecom files.

Bains’ Internet pricing offensive is intended to neutralize the political opposition to Joly’s Canadian content policy. On the policy level, the government’s critics are boxed in.

That’s because the $400 million in financial support for Canadian content and local news can only come from industry levies or more government spending. If Joly’s critics are against both, they stand naked in their indifference or hostility to Canadian culture.

Still, winning the policy debate and winning the politics are two different things. There is a federal election in between now and when the legislative implementation of the Liberal program is expected in 2020.

Don’t expect its critics to fight fair. There will be opportunistic attacks on “Netflix taxes” and a religious reverence for the Internet which will be expressed as “net neutrality”.

Unfortunately, neglected in all of the fury is the fate of local news.

A $150 million tranche of the $400 million cable TV contributions keep independent local television stations afloat. As Google and Facebook continue to suck advertising revenues out of the Canadian television market, the financial precarity of those stations may worsen.

Even the network local stations owned by Bell, Corus, Rogers and Québecor are in trouble. Most of those stations lose money and are cross subsidized by their mothership enterprises.

Newspaper journalism is in the worst position of all. The Liberals have done nothing more to stem the steep decline in print journalism in Canada’s daily newsrooms than a token $10 million from the Canadian Periodical Fund. In fact renewed federal support for the CBC has, with unintended consequences, put competitive pressure on news websites.

While the Trudeau government’s new boldness on the Canadian culture file may or may not end up as job well done (there is the matter of the 2019 federal election), its unfinished business is to save Canadian journalism.

June 1, 2018

At long last, some common sense in Canadian media policy.

On May 31st the CRTC answered Heritage Minister Melanie Joly’s request for its advice on how to sustain Canadian content and local news in the Internet age.

With the existing regulatory regime founded on the reinvestment of declining cable television revenues into CanCon, the Commission could only have provided three options to the Minister.

One, scrap Canadian content and local news. Surrender our culture to the Americans.

Two, commit more federal spending, eventually about $400 million annually to replace the annual tithe of five per cent of cable revenues. Taxpayers would pony up, despite supporting the CBC, the Canada Media Fund, and film tax credits to the tune of $1.5 billion per year.

Three, replace the evaporating cable industry reinvestment with Internet industry reinvestment.

The new Commission Chair Ian Scott picked door number three.

Scott is not the charismatic popular figure that his predecessor Jean Pierre Blais strove to be. He considers himself “an implementer.”

Pragmatist might be a better name for him. He knows doors number one and two are political non-starters. He’s engaged in the art of the possible.

That means all arrows point towards shoring up the revenue sources for Canadian film making and local television news by spreading out the burden of contribution; bringing in all industry players whether foreign, domestic, online, legacy, pipe or content.

That means looking the so called “Netflix tax” straight in the eye, no flinching, and recommending that profits made from streaming video and the Internet pipe that carries it will also have to be reinvested in Canadian content and local news.

That means acknowledging the thicket of politics, international trade and enforcement challenges of imposing Canadian cultural reinvestment rules on powerful foreign Internet companies tapping into the Canadian media market. Scott imaginatively suggests “service agreements” (a euphemism for one-of deals) be struck with those companies, abandoning any hope of imposing one-size fits all regulatory standards on Netflix, Google and the rest of the American tech giants.

That means anticipating a consumer backlash to “taxing” anything for the first time. Scott made it crystal clear that reinvestment rules that levy profits from Internet media will be matched by lowering the existing levy on cable media. No cash grab here.

His political opponents aren’t mollified. Michael Geist continues to beat the drum for Internet consumers. The university professor touts subsidized Internet broadband while opposing anything intended to defend Canadian culture: as if the government-mandated industry levies paying for Internet infrastructure aren’t passed on to Canadians, but industry levies to support Canadian content are a burden on consumers.

And what does Chairperson Scott have in mind for local TV news?

In a cryptic one-liner, his report recommends “examine ways to support television news production though increased access to subscription revenues.”

Honestly, that could mean a lot of different things, including legislating “fee for carriage” in which cable companies would be prohibited from rebroadcasting the free “over the air” signals from television towers without paying the broadcasters for that content.

More immediately, Scott probably figures that if the “5 per cent” cable reinvestment rule is re-engineered to stabilize the $400 million industry contribution (of which 40% goes to independent local stations) he will have done a lot for local TV.

As for the network television stations operated by Bell Media, Rogers, Corus and Quebecor, Scott’s report muses aloud about replacing standardized conditions of licence with “service agreements.” Given the Commission’s abysmal track record of granting the big media companies toothless licence conditions for local news, an alternative approach that is both tough and transparent might be an improvement.

May 8, 2018

Doug Ford is now in the news business. The fake news business.

In a series of Ontario election campaign videos circulated by Ford’s campaign team, the front-running leader of the Conservative party appears as a news subject in a two-minute video that looks and sounds exactly like a conventional TV news story.

The “reporter” is not a journalist. She is fake. Lyndsey Vanstone is Ford’s executive assistant and former press secretary. Ford speaks from a press conference podium about hydroelectric bills, a huge election issue. Cut to “business owners” and “customers” who are “interviewed.” Vanstone wraps up and signs off like any TV reporter.

As reported by the National Post, veteran Conservative media consultant Brett Jones of the Sussex Strategy Group defended the election video masquerading as a news piece:

“I think this is a first, or at least a first in Canada,” “Part of me thinks, ‘Wow, what took people so long?’ … I think it’s an effective format.” http://nationalpost.com/news/politics/doug-ford-creates-simulated-news-to-counter-media-that-isnt-going-to-give-us-a-fair-shake

Ladies and gentlemen, join me in calling bullshit on that.

Doug Ford is the populist Toronto politician who famously referred to journalists as “maggots” and “liars” for truthfully reporting on his late brother Mayor Rob Ford’s crack cocaine habit.

At the beginning of this campaign, Ford nixed the tradition of allowing journalists on his campaign bus (the seats are paid for by news organizations).

Ford lovers and haters posted up a storm in hot debate over Ford’s obvious attempt to limit opportunities for reporters to ask him questions, something would-be Premiers might have to get used to. Observers noted journalists need more than just scrum-access to a candidate.

Ford’s defenders no doubt justify his tactics on the grounds that the mainstream media hates him, so why help them out?

The fact is that reporters don’t hate him. They just want to talk to him so they can do their jobs. It’s their public duty to press any candidate, especially a populist candidate on the right or the left, to explain their policies as if they understand them, so voters know what they are going to get.

The campaign bus tempest might have been in a teapot, but now we have something far more sinister: fake news manufactured by the candidate. No Russian plot, this.

They say that imitation is the sincerest form of flattery: it’s ironic that Ford rales against the mainstream media but his campaign team apparently values the credibility of the hated #MSM.

The Ford video is intended to mislead the public and in spite of the Fordnation logo at the bottom of the screen, many will be mislad into thinking it’s independent journalism.

Although in the candidate’s defense, Ford’s video differs little from a Fox news report on Donald Trump.

February 17, 2018

The underwhelming response in the federal budget to the crisis in Canadian print journalism was long expected.

Heritage Minister Melanie Joly habitually labels the Press “a failing business model” unworthy of a “bailout.” Finance Minister Bill Mourneau’s own indifference has been ill-concealed.

A year after Joly’s consultant Ed Greenspon documented the dire future of a news industry starved of advertising revenues— findings that were loudly echoed by the Liberal-dominated Heritage Committee— the federal cabinet has approved two limited measures.

The $75 million Canadian Periodical Fund will be expanded by $10 million. The money will undoubtedly do some good for community news outlets that get a slice of it, but Heritage spokespersons were unable to clarify if mid-sized or large urban daily papers will be eligible.

To benchmark the scale of that $10 million figure, recall the industry group Newsmedia Canada had lobbied Ottawa for $350 million to provide a 15% subsidy of editorial costs for Canada’s 100 daily print and online news outlets. The Liberals themselves bestowed a much needed $150 million annually on the CBC.

It would have come at a political cost for the Liberals to subsidize commercially owned news outlets, even if journalism is acknowledged by all as a public good. Opinion polls on public aid were lacklustre. In fact it’s become a Canadian pastime to slag our #MSM (mainstream media) like the Toronto Star (“too left!”), Postmedia (“too right!”), and Bell CTV (“too rich!”). You have to know that the only thing the Liberals want to do less than throw a life line to their nemesis Postmedia is to throw a lifeline to Postmedia and take political flak for doing so.

But even if subsidies to the independent Press were politically toxic to the Liberals, solutions more palatable than government cheques were available. Many policy commentators including Unifor recommended (https://www.thestar.com/news/canada/2017/01/23/tax-law-tweak-could-bring-millions-to-canadian-media-study-finds.html ) closing the digital loophole in section 19 of the Income Tax Act. Aligning the tax rules for online advertising (mostly Google and Facebook) with TV and print advertising would have driven about $250 million of Canadian advertising from Google and Facebook back to Canadian news outlets starved for revenues.

A nice surprise however was the Finance Minister’s announcing a study of tax rules governing charitable status to assist journalism, an idea which he had dismissed only a few months ago. Still, eighteen months after Joly kicked off her public review of Canadian media, Ottawa will begin to study the issue.

As token as these new policy measures may be, the Liberals now acknowledge that journalism is a public good, it’s in crisis, and a solution needs to be found.

That Liberal acknowledgement likely would not have happened without the political noise across the country, particularly in Quebec, and 300 layoffs at community papers closed by Postmedia and Torstar in November.

Canadian newsrooms have shrunk by 25% since the Liberals took office. With more newspaper closures and journalist layoffs in the months to come, we will be having this same discussion at the next federal budget and the 2019 election.

February 7, 2018

When you get a heated reaction to a common-sense proposition, there is usually something else going on.

So it is with the criticism of Fairplay Canada’s anti-piracy campaign launched last week.

It’s common sense that stealing is wrong, theft has victims, and that the rule of law (and basic morality) demands something be done about it.

But it’s nearly impossible to enforce the rule of law against offshore pirate websites. It’s an endless game of whack-a-mole. Hence, the website-blocking proposal from Fairplay Canada, targeting only “blatant pirate websites.”

Fairplay’s vocal opponents —including copyright lawyer Michael Geist, Open Media, and other Internet libertarians— have had to figure out how to deflect the basic logic and fairness of the anti-piracy campaign.

Geist’s stuff is red meat for the conspiracy-minded. He sees a slippery slope from blocking full-blown pirate sites to government censorship of the rest of the Internet. Lots of Internet fans eat it up.

Geist also says the Fairplay proposal is flawed because there are no judges involved in vetting the pirate most-wanted list before blocking.

As the lawyer Geist knows, CRTC commissioners are administrative judges, hardly an uncommon status throughout Canada’s legal world. They may not have the lifetime job security of the black-robed judges that Geist favours, but they are the expert adjudicators in the telco/broadcasting universe, and they are appointed by the same federal government that appoints their black-robed counterparts. Even if the CRTC commissioners somehow couldn’t distinguish a notorious pirate site from free expression, the Federal Court of Appeal would step in.

Keep in mind the website-blocking proposal is not about legal speech, or even speech at all. It’s the digital equivalent of padlocking a warehouse full of stolen DVDs. The slippery slope argument is a specialty of interest groups like the anti-gun NRA: if you ban assault weapons, they will take away your Derringer, so never mind the carnage.

As we know from recent events in Kenya, an authoritarian government willing to shut down television stations for broadcasting its political opponents does not need a legal slippery slope. They just do it.

But this is Canada, with a powerful tradition of rule of law and freedom of expression, not Kenya, Russia, or wherever.

The other major objection to the Fairplay proposal is nicely summed up by a recent post on our Facebook page: “I would not even attempt alternate sources of streaming if satellite TV was reasonably priced and completely tailored to my needs.”

No doubt “alternate streamers” think cable companies charge too much for movies, and really why can’t they be more like Netflix? Meaning, if we could stream all the movies and sports we wanted for $10.99 per month, we wouldn’t “alternate stream” pirated content.

When you hold that argument up to the light, however, it’s a different story

First, credit where it is due. You have to acknowledge Netflix’s amazing success. It is now the number one Canadian video channel, thanks to its easy navigation tools, massive global scale, and a loss leading monthly subscription rate. Keep in mind, Netflix has never made money and is in billions of debt.

But you can’t get most second-window hit movies on Netflix, which is what gets pirated. Neither does Netflix stream the international football games that draw so much pirate traffic because they cost too much to re-sell for $10.99 per month. Our cable companies, by contrast, pay top dollar to buy these hit movies and big sports feeds and so they re-sell them for what they are worth.

Nevertheless, if our media companies should be more like Netflix, they certainly are giving it a shot. Up against the Netflix colossus, Bell Media is competing with Crave TV ($7.99 monthly). Rogers and Shaw launched Showmi at $8.99 monthly, but it went bust. Bell just launched its free short-video app Snackable TV.

The irony is that is that even at $10.99 Netflix is priced too much for some people. Around the globe, Netflix and other streaming companies lose $30 billion annually to pirate sites, and climbing every year.

January 30, 2018

The opposition to Fairplay Canada’s campaign against movie-thievery arrived on-cue, and off-key, as expected.

The industry coalition of Canadian unions, guilds, broadcasters, and film studios is asking the CRTC to stop the whack-a-mole game of chasing offshore pirate websites and institute an effective geo-blocking regime that stops the most blatant theft sites. Twenty countries including Great Britain, France, South Korea, Portugal, Spain, Norway, Greece and Denmark have already done what Fairplay is proposing: protect their own cultural industries from thieves.

The Fairplay Coalition, including the media unions Unifor, ACTRA, IATSE, and the Director’s Guild, wants a stop to the job-killing drain of $500 million annually from the Canadian movie and TV industry.

Predictably, the apologists for the big rip-off claim to speak in the name of Internet freedom, using the tired gun-nut argument that if government curbs the freedom to be extreme, then tomorrow we will be living in a police state. To quote Open Media’s Laura Tribe, “it will be an official Internet censorship committee…and open the door for overreaching censorship in Canada… like using a machine gun to kill a mosquito.”

Well, it hasn’t happened in any of the democracies that have taken action.

University of Ottawa copyright prof Michael Geist, the best known libertarian voice for a world wild web, says that a website blocking law would be without judicial oversight. He’s wrong: the Federal Court can review any CRTC action.

He casts doubt on the actual size of the massive revenue leak, meaning it might only be $250 million instead of $500 million: as if stealing fewer millions would be okay.

More to the point: do the Internet libertarians have any clue about the impact on honest hard-working Canadians toiling in our TV and film companies that are losing these millions?

Film set hairdresser Peggy Kyriakidou is one such media worker.

“Making a decent living in the film industry is a struggle,” said the single-mother working in Toronto’s film business for the last 25 years.

“The work isn’t steady and our incomes are dictated by the profitability of the studios. It’s tough making ends meet. Stealing movies makes it so much harder.”

Bell Media CTV’s crime reporter Stéphane Giroux sees it the same way:

“We’ve had layoffs at the Montréal station and we work hard to deliver important local stories under tight budgets,” said the 25-year veteran on the Québec news scene.

“People imagine broadcasters are rolling in money, but only a handful of local TV stations in Canada turn a profit. Our owner makes money on its movie business that it spends on local news. We can’t afford to have millions stolen by pirate websites.”

It’s look-in-the-mirror time for us all, not just Mr. Geist. Is it okay to steal from Bell (which employs 50,000 Canadians), Rogers (25,000), Shaw Communications (20,000), or Québecor (10,000) because they are “big” and “they can afford it.”? Peggy and Stéphane would say no.

How many Canadian media workers have to pay the price for piracy before we stop taking the name of Internet freedom in vain?

December 8, 2017

On September 28 when Heritage Minister Melanie Joly announced she was doing nothing for local news, but that local news was nonetheless a “pillar” of her vision for media, I said to myself: it’s going to take bodies, lots of bodies.

Here are the bodies: Postmedia and Torstar announced on November 27th they were swapping local weekly and daily papers. Thirty-six of them immediately closed, 21 by Postmedia and 14 by Torstar, including dailies the Orillia Packet & Times, the Barrie Examiner, Metro Vancouver, and Metro Winnipeg. Three hundred journalists and media workers were fired.

The swap and close was a workaround federal collusion laws. It is of course, collusion by any other name. Both Postmedia and Torstar claim they had no idea the other would close almost all of their newly acquired papers, despite doing exactly the same thing at exactly the same time.

The closings were driven by plunging newsmedia revenues. Postmedia consolidated its Ottawa footprint as Torstar mostly withdrew from the capital region. Torstar consolidated in the Niagara and Kawartha regions as Postmedia stepped back.

Postmedia’s Paul Godfrey was not especially skilled in his corporate humility, wasting no time in (correctly) blaming Minister Joly for her inaction. Annoyed, the Minister shot back that the closings were “cynical.”

Torstar meekly protested that it was not creating news deserts (only news monopolies).

The news deserts aren’t far away. When Torstar bought the Cambridge Reporter in 1999, a Torstar executive told me that “we didn’t buy [the Reporter] just to close it.” This despite the Reporter being a competitor to Torstar’s larger daily in Kitchener

Four years later, they closed the Reporter.

The federal Competition Bureau announced it will investigate the latest swap and close.

Don’t expect much. In 2014 Black Press and Glacier Media did the same thing, swapping and closing a long list of weeklies in British Columbia. The Bureau did nothing, likely because advertisers still have lots of ways to reach consumers, including television, radio, Facebook and Google. And on the reader side of the equation, losing access to a free commodity doesn’t sound much like a restraint of trade.

Mind you the political atmosphere in 2017 is different from 2014 and the change in government makes interesting speculation about what the Competition Bureau might do. The Trudeau government has been embarrassed by its lack of action on local news and a scapegoat could be just the thing.

Meanwhile, nothing has changed the basics of the local news problem. Google and Facebook have irreparably broken the link between advertising revenue and journalism. The Liberals are either going to do something about this or watch journalism die on its watch.

It’s time for the Liberals to put its money where its mouth is and save local news. They’ve been offered a full menu of options by Unifor, Newsmedia Canada, its own consultant in the Shattered Mirror report, and notably by the Liberal-dominated parliamentary Heritage Committee.

It’s not just financial assistance that’s needed. It’s leadership. If it weren’t for Postmedia and Torstar’s collusion, many of those 36 local papers might have found new community owners, including employee co-ops, and survived a few more years while the Liberals make up their minds about saving journalism.

In fact, the Liberals could even think about a quid pro quo. In exchange for serious federal assistance to local journalism, news companies planning to close local papers would be obliged to provide public notice of closing, repudiate collusion aimed at creating news monopolies, and co-operate in the transition to community ownership.

That would be federal leadership.