Is Bill C-18 Unconstitutional? CIPPIC Thinks So in Critical Paper

Other voices have chimed in to criticize Bill C-18. CIPPIC concludes that Bill C-18 appears to have constitutional problems.

Is Bill C-18 unconstitutional? There seems to be a growing consensus that it is. Earlier, we reported on two law experts making conclusions that Bill C-18 may have constitutional issues. At the time, we also noted why we think that Bill C-18 is unconstitutional.

As it turns out, another organization also concluded that Bill C-18 appears to be unconstitutional. That is the Canadian Interest Policy and Public Interest Clinic (CIPPIC). Earlier this month, they released a paper offering their take. The report is entitled “Bad News” and focuses in on Bill C-18 and the legal questions it raises. You can also read the whole report here (PDF).

One of the things that stands out is that it almost immediately covers our key concerns about the bill:

Bill C-18 is remarkable in how poorly it is drafted. The Bill as it stands contains language that is underinclusive and vague to the point of being unconstitutional.

First, the Bill’s definitions of “news content” and “news businesses” are unclear. Bill C-18 incorporates several eligibility criteria for news businesses, among them an outlet that “produces news content of public interest that is primarily focused on matters of general interest and reports on current events including coverage of democratic institutions and processes.” Such outlets must employ two or more journalists, operate in Canada, produce content that is not primarily focused on a particular topic, and adhere to the ethical standards of the journalistic profession.

This definition of “news businesses” is dramatically underinclusive, given how the production of news is evolving in our technological age. Bill C-18’s focus on outlets that produce news content of “general interest,” rather than those that focus on “a particular topic,” may well exclude outlets that focus on a particular industry (like the legal or tech industries) from financial support. This would be a public policy mistake of the first order, given the role played by specialized news outlets in breaking some of the most consequential news stories of our day.

Indeed, our thinking is that when people build online news sites, specialization borders on a necessity. Whether it is a specialization in a specific geographical area or a specific topic of general interest. In our case, Freezenet focuses on technology issues. Our scope is quite wide ranging from copyright to free speech to privacy to video games to music. Yet, an interpretation can be rendered that we focus on “a particular topic” and that topic is technology. As a result, even if we hire a whole army of arms length journalists, we would be excluded anyway. In our view, our right to freedom of the press has been infringed.

It seems that CIPPIC more or less agreed with that assessment (we didn’t know about the assessment at the time when we wrote our own conclusions). Here’s their take on this:

These provisions may well be unconstitutionally vague. The Supreme Court of Canada has ruled that “a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate.” This is an apt description of the “significant bargaining power imbalance” provisions of Bill C-18, which fail to provide adequate guidance on how such an imbalance is to be determined.

Consider the “size of the parties” factor, for example. In determining the size of a “digital news intermediary,” are its worldwide operations considered, or only its operations in Canada? Do we consider all the business operations of a conglomerate like Google, which range from developing autonomous vehicles to producing Android smartphones, or just those parts of its operations that relate to the distribution of news? Is revenue the appropriate measure of size, or rather profitability? Bill C-18 so lacks in precision that it sheds no light on how to answer any of these questions. Yet the existence of a duty on the part of online platforms to bargain with Canadian news outlets turns on how such questions are answered. As the Canadian Media Concentration Project has shown, large Canadian media companies and the Canadian operations of large technology companies are of a similar size—meaning that the existence of a “significant bargaining power imbalance” is going to turn on what pieces of these conglomerates get included in the C-18 analysis.

Another angle that is often covered here and elsewhere is the fact that it also is a complete affront to the very concept to fair dealing (for American’s reading this, fair dealing is the Canadian version of fair use). CIPPIC says that Bill C-18 “eviscerates” fair dealing, concluding the following:

Limiting the ability of platforms to rely on fair dealing and other copyright exceptions establishes a dangerous precedent in our law, as powerful economic interests seek to restrict the legitimate uses that Canadians can make of copyrighted works. Furthermore, such limitations on fair dealing raise serious concerns under the Canadian Charter of Rights and Freedoms, as the fair dealing exception is a key element in ensuring the constitutionality of the Copyright Act.

A third concern that is raised by CIPPIC is that it offers a disincentive to regulate the toxic business model of big tech.

Perhaps the single worst aspect of Bill C-18 is that it makes Canadian journalism—the very lifeblood of our democracy—economically reliant on a toxic industry that is undermining the very foundations of democracy at home and abroad. Large online companies like Google and Meta make most of their money by selling targeted digital advertising, which use personal data mined from our online activities to bombard us with ads that follow us around the internet.

The practices of this industry have been devastating for the privacy of Canadians—especially given just how weak our privacy laws are at regulating this industry. Worse still, targeted digital advertising is at the heart of scandals such as the Cambridge Analytica affair in the U.S., and foreign interference in elections around the world. Well-crafted targeted digital advertisements have the potential to move elections and sow discord in democratic societies, and our adversaries know it.

Just as we moved to outlaw asbestos and ban dangerous chemicals like PCBs, we should be moving as fast as we can to regulate the digital advertising industry and the way it weaponizes our private information to target us with ads. Yet Bill C-27—the government’s privacy reform bill— remains moribund in Parliament and proposes only modest improvements in the level of privacy protection enjoyed by Canadians. This may well be because the government needs companies like Google and Facebook to remain profitable to use them as cash cows to fund Canadian journalism. Correspondingly, Bill C-18’s short-term fixation on wresting money from the giants of Silicon Valley distorts Canadian digital policy by reducing the government’s incentives to tackle the significant harms that are being caused by Big Tech’s ad-supported business model.

The report then offers this conclusion:

The people of Canada and our journalistic organizations deserve better than Bill C-18. The news media are vital civic infrastructure in our democracy and, just like our physical infrastructure, they deserve to be funded appropriately. No one can dispute that large technology companies should contribute their fair share to financing public expenditures. Tech giants like Google and Meta should do so by paying appropriate taxes on their profits, however, rather than through poorly designed legislative gimmicks that serve to reinforce the pathologies of their business models.

One important aspect in all of this is that CIPPIC seems to be on board in calling Bill C-18 unconstitutional. While it does add numbers in the column of those who consider Bill C-18 unconstitutional, there is another important aspect to this as well. CIPPIC is basically on the short list of organizations that would likely either file a lawsuit or an amicus brief with someone else filing a lawsuit to put a stop to these horrendous bills. Whether it is Bill C-11 or Bill C-18, CIPPIC is the organization that I’m guessing would either bring or support a legal challenge against them both. So, when CIPPIC is saying that Bill C-18 is unconstitutional, it’s not just me hoping that they come to similar conclusions and hoping that they would take action. The viewpoint is basically confirmed at this point.

For those curious, CIPPIC’s viewpoints on Bill C-11 can be found here. You can read our analysis of the hearing mentioned in that posting here.

Probably the only thing that sticks out here is this idea that CIPPIC could theoretically be pushing multiple lawsuits to challenge two laws at once. Indeed, CIPPIC does do legal interventions like this already. In fact, it was their legal intervention in the Sony Rootkit scandal of 2005 that made me a huge fan of the organization originally. Hopefully, so many legal interventions all at once like this doesn’t become a strain on their resources. After all, it may be legal interventions like this that become necessary at putting a stop to all of this madness in the first place.

At any rate, you can really get a sense that the legal defences are already being formed for when these bills become law. It’s infuriating that it is getting to this point. After all, the government is seemingly chipping away at the last defences at the Senate already and the options the Canadian senate, last we heard, are running low at this point. Developments like these are probably the few scraps of good news we can find these days. Who knows? Maybe the same prediction I made about Bill C-11 could more or less apply with Bill C-18. I could be right on that one too. At this stage, that is the hope.

Drew Wilson on Twitter: @icecube85 and Facebook.

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