The “mess” of the Online News Act is more likely due to “incompetence rather than malice,” one of the best-known law professors in Canada has said.
In a thorough discussion of the topic, Michael Geist, an academic at the University of Ottawa and a specialist in internet and e-commerce law, told NowMedia the legislation is “deeply flawed.”
The federal government originally claimed the law, also known as Bill C-18, would improve Canada’s media landscape by making tech giants pay for news posted to their platforms.
But in the summer of 2023 Meta, a crucial social media platform for Canadian news companies, simply banned news from Facebook and Instagram, resulting in devastating consequences for many of the nation’s media outlets.
The federal government has since agreed a $100 million deal with Google – what Geist said amounts to a “bespoke piece of legislation” for the firm – to avert the search engine’s threats of following Meta in blocking news in Canada.
A deal with Meta, however, seems as far away as ever, with both Mark Zuckerberg’s company and the federal government saying very little about any new negotiations.
The Metapocalypse
Dozens of media companies across Canada – particularly small, independent and local outlets – have gone under since Meta blocked news, while others are struggling to hang on amid huge declines in traffic.
But Geist told NowMedia it seems to him that Meta is “out of news in Canada” and that there is “no real sense that there’s any desire [from them] to return under the current system.”
“The sense is that on a global basis the company is deprioritizing news on its platform,” he said, adding that it “is willing to link to news but is not willing to pay for linking to news.”
“So long as the Online News Act remains on the books and they’re required to enter into some kind of payment [agreement for news], I think we can expect that Meta will not move away from where it is now, which is blocking news links on its platforms like Facebook and Instagram.”
Meta, he said, doesn’t seem interested in, or even fond of, news, which partly explains why the federal government’s attempts to levy cash from the firm for news content has backfired so spectacularly.
But while Meta appears to be moving away from news everywhere in the world, it’s only in Canada that the company has gone to the length of blocking articles entirely.
“What separates Canada from many other countries is that because we now have a law on the books that effectively requires payment for links, the company says, ‘Well, fine, we're not going to link,’” he explained.
“The company is in other jurisdictions, even where it has deprioritized news. It is still willing to link – so people post news links, they continue to exist there. It's really only in Canada that doesn't happen, because of legislation.”
If Canada were to “backtrack” on aspects of the law, Geist said, he believes Meta would then “resume linking to news, even if it would be in a deprioritized manner.”
But will the federal government back down?
Given Meta’s position on news, and its willingness to block articles for the best part of a year to make its point, does that mean the federal government must inevitably compromise?
“I don’t think they’ll back down,” Geist said, adding that the Liberal government, which is propped up in the House of Commons by the NDP, is “stubborn.”
“I thought they tried to salvage the legislation with the Google deal, clearly. But given the rhetoric that flowed from the government to Meta for months, I don't see them backing down. I mean, it would be tantamount to acknowledging that the critics who warned that this was a likely outcome were right, and the government doesn’t seem to want to do that.”
Among the law’s critics are MP Dan Albas, Tory leader Pierre Poilievre, Conservative Party of BC leader John Rustad and many smaller media outlets across Canada.
Prime Minister Justin Trudeau and BC Premier David Eby have previously expressed anger about the consequences of the law, with both accusing Meta of endangering lives by blocking news during wildfires.
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Trudeau and Eby, however, still regularly post on Meta platforms and neither has said much about the firm’s ban on news in recent weeks.
Last week, Eby even praised Meta for discussing kids’ safety on social media platforms, adding that BC had committed to working with Meta to “amplify” what he called “official information” about the likes of wildfires.
Geist, though, said he does not consider the argument that Facebook was “endangering people” by blocking news during wildfire season “all that compelling.”
“The official sources of information were always there,” he said. “There were many communities that were affected that didn't have power or internet access at points. And so the idea that Facebook was the problem struck me as a bit weird.”
‘Doubling down on the legislative error’
If the feds won’t back down, and Meta won’t back down, and the wildfire argument lacks moral force, and Trudeau and Eby seem to have lost their passion for complaining about the consequences of C-18, then what does the future hold?
Geist said he thinks one possibility is that the federal government will “encourage someone to complain to the CRTC” about Meta once the deadline passes for the firm to register as a “digital news intermediary” (DNI) under the Online News Act.
This hypothetical “someone” would tell the CRTC that Meta “are, even without the links, somehow violating the law,” according to Geist.
Heritage Minister Pascale St-Onge appeared to confirm that theory in December when she said the CRTC should “absolutely” be looking at the sharing of screenshots and links that contain, or lead users to, news content.
Meta, Geist said, was given six months to register as a DNI when the law came into effect in December. “So, Meta is still not doing anything that's actionable under the law,” he said.
“If they fail to register – and at this moment, it would seem likely that they will not register because they say they are not a DNI, they're not a digital news intermediary, because they're not linking to news – then it would be open to the CRTC, perhaps egged on by some entities, to conduct an investigation as to whether or not they are offside the law because they have not registered.”
But Geist said he’s “not convinced that this is a good strategy” because “it would likely lead to yet more blocking,” including of images.
It would mean “essentially doubling down on the legislative error,” the professor said.
Does anyone actually care about news?
While Meta and the feds continue their feud, news companies across Canada continue, quietly, to die.
When Metroland Media Group laid off over 600 workers last year, it said in a statement that the industry faces “existential challenges, largely because digital tech giants have used their dominant positions to take the vast majority of the advertising revenue in Canada.”
A study by Toronto Metropolitan university, meanwhile, found that at least 36 platforms closed down across the country in the first 11 months of 2023. Of those, 29 were community papers.
Geist, who emphasized his view that “there’s still value in news,” said that while there’s room for the government to assist, there’s been a “bigger shift over the last five or six years” in which government is “footing the bill in many newsrooms for the majority of news costs, which strikes me as enormously problematic.”
He added: “In Quebec, they say it could be as much as 100 per cent for some outlets. That strikes me as enormously problematic if what you're purportedly trying to do is preserve an independent press by making it almost wholly dependent on government tax credits or regulation to survive.”
Some news companies are being subsidized by the federal government through, among other schemes, the Canadian Journalism Labour Tax Credit. Outlets that qualify for the credit can claim as much as 35 per cent of their employees’ pay, up to a maximum salary of $85,000.
To qualify, applicants must win the approval of a government-appointed panel of individuals who, according to the panel’s chair, provide “expert assessment” of journalists’ work.
The chair is an academic who worked as a journalist for a short time more than three decades ago.
NowMedia has applied for the credit twice but, like many other outlets that produce original journalism, was refused for supposedly not producing original journalism.
“If you're going to get into the business of picking who's a journalist and who isn’t, with thousands of dollars at stake, at a minimum, you've got to have a transparent process,” Geist said.
“And it does feel like there are some entities that have succeeded in obtaining that status and others that haven't, and the line is at best blurry.”
He added that there appears to have been a “desire” from the federal government to “support legacy players.”
“Largely because that's who politicians know the best because those are the ones who are able to lobby the most effectively,” the professor explained. “And I'm not convinced that that necessarily represents the future of the industry.”
In his view, the Liberals’ approach “has been driven more by political considerations rather than by policy.”
“They listen to a fairly narrow group of voices, who are the ones who are typically the biggest direct beneficiaries of the policies, and many of the other entities that are engaged in innovation [and] are trying to find new models to make this work are oftentimes either excluded or simply dismissed or ignored.”
He added: “I thought we saw that throughout the C-18 process, and it was particularly damaging because the view of many of those players was, Listen, if you want to help me, help me, that's fine – but at a minimum, just don't hurt me. And they could see the hurt coming, and the government just didn't seem to care.”
Geist pointed to remarks made by Lisa Hefner in 2022, when the Liberal MP said online news outlets were “not news.”
“They just don't see it that way,” he said. “And she has like six online publications all within 20 minutes’ drive of her constituency office, and they just don't see that.
“I mean, part of it is because some of these MPs come directly out of the legacy players such as CTV and some of these other entities, and I think part of it is just that they come out of a different era where they, at least for now, just do not see the emerging players as being credible.”
But some political parties, he added, including ones that are “now enjoying a lot of success in the polls, appear to have “recognized” the importance of online news and the reality that “you ignore them at your peril.”
Incompetence, not malice
BC Conservatives leader John Rustad, whose party could end up in power this year according to one recent poll, told NowMedia earlier this month he thinks the Online News Act has only “one purpose.”
“You’re trying to control the narrative,” he said of the Liberals.
“You're trying to make sure that the only information out there is the narrative that you want forwarded. And I think that is completely wrong by government.”
But does Geist agree?
“I know people think that [it’s intentional],” he told NowMedia. “I ascribe much of the mess to incompetence rather than malice in terms of what they were seeking to do, but I do recognize the reality of where we end up is that there quite clearly is a comfort level with certain journalist outlets and not with others."
He added: “I thought the proof was frankly in the coverage of C-18 which, with rare exception, the beneficiaries of this [law] used their power to essentially lobby for this legislation [and] to sideline much criticism, and if you are in government operating in this bubble, then that actually can help explain why the government was so slow to recognize that this was not a bluff, that these were very real risks and that they were making a mistake.”
NowMedia has requested interviews with Meta, the federal government and Premier Eby about this matter numerous times.
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