Not Just Linking: Link Tax to Target Mere Facilitating Access to News

Canada’s link tax, Bill C-18, doesn’t just charge for linking. It also charges for facilitation as well.

Earlier, we wrote an analysis on Bill C-18. It was a tough one to go through, requiring me to step away from the computer for the simple reason that I had become far too infuriated to think straight. The legislation, to put it plainly, is a dumpster fire of a piece of legislation – so much so that I plainly admitted that I probably missed something throughout the analysis. Simply put, the legislation is that bad. One would struggle to know where to begin with all the terrible consequences of such a piece of legislation.

Sure enough, another angle was uncovered recently. Section 2(2) (and, to be fair, there was a lot of garbage separating section 2(1) and 2(2)) says that merely facilitating access to a source is enough for the act to apply:

Making available of news content

(2) For the purposes of this Act, news content is made available if

(a) the news content, or any portion of it, is reproduced; or

(b) access to the news content, or any portion of it, is facilitated by any means, including an index, aggregation or ranking of news content.

The discovery was made by Michael Geist who commented with the following:

Bill C-18, the Online News Act, is less than 48 hours old, but the more you examine the bill, the worse it gets. My previous posts unpacked why the general policy is bad for press independence and competition as well as why the bill features a misguided attempt to require payments for links. Yet the bill requires an even deeper look since it goes far beyond “compensating journalists when they use their content” (as Prime Minister Justin Trudeau said yesterday in the House of Commons) or even linking to news articles. Rather, the bill requires compensation for facilitating access to news in any way and in any amount.

In doing so, it eviscerates the claim that there is a tangible connection between the requirement to pay for the value of news articles on social media and search platforms (called digital news intermediaries or DNI’s in the bill). Rather, Bill C-18 is a shakedown with requirements to pay for nothing more than listing Canadian media organizations with hyperlinks in a search index, social media post, or possibly even a tweet. At a time when we need the public to access to credible news, Canadian Heritage Minister Pablo Rodriguez believes that large Internet companies that engage in the act of facilitating access to news – not copying, not using, not even directly linking – should pay for doing so.

Canadian Heritage Minister Pablo Rodriguez has made a point of contrasting his bill with the Australian code on the same issue. The Australian code treats three activities as making content available: reproduction of the content, providing an extract of the content (designed to target short blurbs of the stories), or links to the content. While that too is worthy of criticism (the Australian code has actually never been used), it does not cover mere facilitation of access.

Why does this matter?

There was a time when this government fashioned itself as pro-Internet, supportive of net neutrality, and a staunch defender of fundamental freedoms, including freedom of the press and other media of communication. Yet it cannot credibly claim to support those principles and simultaneously legislate barriers to accessing media by mandating payments for facilitating access to media sources.

Further, how is any of this possibly constitutional? Would the Supreme Court uphold a law whose effect could be to limit facilitation of access to news? Moreover, how does the entire Bill C-18 framework fit within the federal government’s jurisdiction? It isn’t broadcast, it isn’t telecommunications, and it isn’t copyright. If the government claims powers over anything involving the Internet then it believes there are no real limits on its jurisdiction.

Millions of Canadians choose to access media through search and social media. As I pointed out in yesterday’s post, the resulting referral links already provide enormous value at no cost. Setting even that aside, mandating payments for services that facilitate access to media sources runs counter to basic freedoms and casts aside the suggestion that the bill is limited to a “quid pro quo” of payment for links to news articles. Bill C-18 is shamefully over-broad, an embarrassment to the news media lobby that demanded it, and unworthy of a government that sees itself as a model for the rest of the world on media freedoms.

There is actually a very specific reason why the Canadian government is doing this. Back in February of 2019, Google launched an experiment. This in response to the Article 11 debate. In it, Google launched an altered service for European users where headlines, thumbnails, and all context was removed. The experiment was to show what a compliant news aggregator looks like. In response, traffic to news sources plummeted 45%.

This provision appears to explicitly remove this possibility from happening in Canada. This basically forces an “all or nothing” approach where either Google complies with the link tax or shuts down completely in Canada. So, in short, this was the lesson the Canadian government learned from this incident – not that news services derive a benefit from such services as aggregators, but rather, any cheeky ways of side stepping the tax must be shut down from the beginning. It’s a very lobbyist written provision to say the least.

As Geist does note, however, this law is most certainly open to litigation. It’s hard to really think of how such a law is constitutional in the first place. The law itself is incredibly asinine and obviously the result of a corrupt political process where lobbyists are the ones writing the laws.

As time goes on, we can only expect to see other nasty aspects from the law to come forward.

Drew Wilson on Twitter: @icecube85 and Facebook.

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