The Canadian government appears to have dropped the begging effort. They have started demanding Meta be “regulated” under the Online News Act.
Two days ago, we reported on the Canadian government resorting to begging Meta to please oh please, pretty please, come back. At the time, the Heritage Minister had said that her door is “always open”. The begging effort was seemingly an effort to appear diplomatic despite being anything but diplomatic throughout the entire debate.
While it was a break from the “my way or the highway” approach by the Canadian government, it appears that the break was quite brief. Reports are surfacing that the Canadian government has already abandoned this approach in favour of demanding heavy regulations against Meta. This under the Online News Act. It’s a move that smacks of political retaliation, but nevertheless, the government seems to be employing this anyway. From the Globe and Mail (probably paywalled):
Heritage Minister Pascale St-Onge has signalled that she would like to see Meta regulated under the Online News Act, as social-media users find loopholes to share news on its platforms.
Meta began blocking news on Facebook and Instagram when Parliament passed the law this summer, arguing that this way it would avoid regulation by the Canadian Radio-television and Telecommunications Commission.
However, news remains accessible on Instagram for some Canadian users when they view posts from media organizations using an internet browser on their phone or computer.
Users have also found other ways to share news stories on Facebook and Instagram, by direct messaging news links, sharing screenshots of articles and shortening news links so they can appear on stories, which are photos and videos that disappear after 24 hours.
When asked if the CRTC should look into this, St-Onge said: “Absolutely.”
“I cant wait to see what the CRTC will do when the law is fully enforced on Dec. 19,” St-Onge said Tuesday.
This clearly shows the Canadian government is throwing yet another temper tantrum for not getting its way. What’s more, much like what happened when the government folded to Google, the government really has nothing to work with when pushing forward with any case against Meta should they proceed down the road of playing petty politics. Any effort to push forward any kind of political retaliation on the governments part is going to immediately run into a host of problems.
For one, the government has repeatedly made clear that this is entirely about news links. Once news links are dropped, then the platform has exited the market and no deals can even take place. That’s been the long established interpretation of the Online News Act. If we are in the business of re-interpreting the law to include screenshots posted by users, then we are essentially completely redefining how the Online News Act operates.
Another problem is that it is not even clear if Instagram is even scoped into the law. The Online News Act is clear that the platforms that do apply are ones that would represent a significant bargaining advantage. During the senate hearings, then Heritage Minister, Pablo Rodriguez, clearly stated that the Online News Act would only apply to Google and Facebook. Though Meta also owns Instagram, it is an uphill argument to say that Instagram also represents a significant bargaining imbalance. In this regard, we are essentially re-interpreting the text of the Online News Act to mean something completely different.
A third problem is that this is essentially users finding ways of circumventing Meta’s filtering technology. Essentially, it is the users that are “pirating” news articles in this. By trying to make the argument that users are circumventing Meta’s news link drop, we are essentially making the argument that Meta is solely responsible for the actions of their users. Given that this is an American company we are talking about, a case can be made that Section 230 applies here. Meta can allow users to report that a news link or screen shots are being shared.
Further, if this concept is simply challenged in Canada, it would essentially argue that if you have a website of any kind in Canada, you are responsible for the content published by users which would completely wipe out all online innovation in Canada. That would ultimately end in a lawsuit that would be fiercely fought against by any web administrator with a will to allow their careers to live. Even if such a lawsuit were to go down in flames, then the solution for Meta is to just block all of Canada entirely which would be a much worse situation for all involved.
A fourth problem in all of this is that this would also invite the same trade tensions with the United States we’ve been seeing for quite some time. Meta would earn themselves a slam dunk case that such regulation is discriminatory against US businesses, violating the USMCA/CUSMA. Yes, the US government is very keen on trade retaliation.
In all of this, what does Canada have working for them? The fact that they are really really mad that Meta didn’t behave precisely how they wanted them to behave. The Canadian government is trying to be cute with the Online News Act and adopting extremely liberal interpretations of what it actually means. This is not a good start and they won’t really have much else to work with.
If the Canadian government opts to go down this road of political retaliation, all they are doing is continuing to dig deeper into the hole they got themselves in. At the same time, considering the pattern of behaviour with this government, this isn’t exactly surprising either.