Questions Emerge on Whether Bill C-18 is Even Constitutional

Bill C-18 is highly questionable, but is it constitutional? A former CRTC chair and former general counsel at the Justice Department weighs in.

There is little doubt that Bill C-11 is completely unconstitutional. Whether it is ghettoizing speech online by prioritizing government approved speech over everyone else or even the question of compelled speech from the perspective of the platform, Bill C-11’s largest problems only escalate after royal assent. Many, including us, have long suspect that Bill C-11 will likely get smacked down in the courts for being a blatant violation of the Canadian Charter of Rights and Freedoms.

Less talked about is whether or not Bill C-18, Canada’s link tax law, is constitutional or not. Indeed, there are a lot of problems with the legislation. This includes creating a massive market advantage for the largest legacy publishing players at the expense of smaller players such as us or blatant discrimination against US companies that very easily run afoul of CUSMA. So, much like Bill C-11, the biggest challenges for Bill C-18 is likely to spring up after receiving royal assent.

The major question, of course, whether or not Bill C-18 is constitutional or not. In pouring over the Canadian Charter of Rights and Freedoms, for us, one provision does stick out as one that would be violated under Bill C-18. That is the following:

Fundamental Freedoms

Fundamental freedoms

2 Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(emphasis mine)

So, freedom of the press is, of course, a fundamental right in Canada. What do we mean by freedom of the press? The Canadian government itself describes it as this:

Canada believes freedom of expression is at the core of human individuality and is one of the essential foundations of a safe and prosperous society.

The right of everyone to hold opinions without interference and the right to freedom of expression are in Article 19 of the Universal Declaration of Human Rights and reaffirmed in Article 19 of the International Covenant on Civil and Political Rights.

This includes the freedom to seek, receive and impart information and ideas of all kinds, whether orally, in writing or in print, or through any other media of choice. Certain restrictions are only permissible when in line with international human rights law.

So, pretty definitive in what it means there. It is a fundamental right to basically do the work of journalism to gather, research, and impart information, regardless of medium.

The question then becomes, where does Bill C-18 fit in with all of this? According to Bill C-18, which we did a very nice analysis of, the bill features eligibility requirements. This is namely section 27. In this case, only certain kinds of news outlets are eligible. Smaller online news outlets like this one, as a general rule, are not qualified under an “eligible” news outlet. As a result, we would not have any right to actually receive any funding even though we offer the work of high quality journalism.

At the same time, Section 11 of the bill, smaller outlets such as ourselves, would not be able to opt out of having our links charged. Where would that money go? That money would ultimately end up in the hands of competitors to Freezenet – namely the larger corporate enterprises in the news business – like CTV, the Globe and Mail, or even the CBC.

In practical terms, financial resources are being drained from outlets such as ours and given to other players in the market – this at the behest of the federal government. In our view, as the government itself so eloquently described, this is interference in our work in journalism. You are basically creating market distortions that favour the larger players and putting financial pressure on smaller players like us who are already struggling to compete.

Put it another way, if a competing news organization to us is continually receiving, say, $1,000 every month as ordered by the government, it makes it much harder for a news outlet like us to compete against that. With that extra $1,000, that news outlet could contract out for freelance work, put that money towards advertising, hire someone to revamp their website, buy new equipment, or a host of other ways that will help their business. Meanwhile, a website such as ourselves would have to make do with less as we struggle even more to grow our website. It doesn’t matter where that money is coming from, the simple truth is that certain players are being given financial advantages over us.

Regardless, government laws are interfering in our operations thanks to these market distortions that are being created by the government.

To be clear, there is a difference between the government straight up giving money away as incentives to larger players and this. In the case of subsidies, money is being given to players who meet certain thresholds. So long as you, say, hire a certain amount of staff or transmit messages through legacy technology such as television or radio, then you can apply to get those subsidies. Anyone who meets that threshold can obtain those subsidies which is perfectly fine.

Fundamentally, though, what Bill C-18 does is compel all news links to be compensable, yet, when it comes to the redistribution of those funds, telling certain outlets that those funds are off limits. It’s less of a “reach these requirements and you can get this funding. Failure to reach that threshold and you won’t get charged anything extra along the line” and more of a “we forced others to pay fees because of your existence, then denying you the right to access that money after”. Put it another way, it’s a white listing system vs a black listing system. It’s a fundamental difference that should not get lost in the shuffle and why we think this is where the government.

So, in our view, that is how Bill C-18 is unconstitutional. It’s a violation of freedom of the press and a violation to my own fundamental rights.

In an interesting development, it seems that others are looking at the constitutional nature of the bill. Konrad von Finckenstein, former chair of the CRTC, and Philip Palmer, former general counsel at the Justice Department looked into the constitutional nature of Bill C-18 and had their own analysis on the matter. They took a very different approach in analyzing this and, interestingly enough, came to a very similar conclusion:

The language of the Act is couched neutrally, but the announced intent is to regulate digital news intermediaries such as Meta (Facebook) and Alphabet (Google) so as to force them to bargain with Canadian news businesses with the objective of seeing the platforms compensate news businesses for the erosion of their share of advertising revenues. The legislation is controversial, and the many pros and cons of the bill have been widely aired. The issue that has not been given attention is a very fundamental one:

Does Parliament have the authority to enact a scheme to regulate platforms?

The federal government never publishes the constitutional opinions upon which it is acting, so we cannot say what arguments the government may rely on if the Online News Act is challenged on constitutional grounds. We simply note that there is no apparent constitutional mooring for the Act. The history of federal attempts to regulate industries in Canada is a junkyard of wrecked dreams. We believe the Online News Act is a prime candidate to join the metaphorical debris.

The framers of the legislation themselves seem to have had some doubt as to federal jurisdiction.

So, what we were able to read (a portion of this is reg walled), they seem to tackle this from a jurisdiction perspective and seemingly concluded that there is no constitutional grounding for which to base this bill on. An interesting angle to say the least and an angle I can freely admit that I wouldn’t have come up with on my own. Very likely, that can be explained by very different backgrounds, experiences, and fields of expertise. nothing wrong with that.

At any rate, Bill C-18 will likely be challenged in court should it become law. That’s not even to mention whether platforms would drop news links altogether. As of now, Google has already conducted tests and Facebook said that if the bill is passed without amendment, then they would drop news links altogether.

Of course, like Bill C-11, it will take time between the passage of this bill and a court challenge to pop up against Bill C-18. This opens up the risk of people being hurt by this process. Whether or not this will happen is difficult to say. We are basically asking if a judge would issue an injunction against the enforcement of either Bill C-11 and Bill C-18. It’s way too early to get a sense of which direction that will go in.

Still, it seems that legal problems are piling up and more and more are questioning whether or not Bill C-18 even has a legal leg to stand on.

Drew Wilson on Twitter: @icecube85 and Facebook.

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