Senate Hearings on Bill C-18 – A Look At Hearing 1 (Segment 2)

We are now taking you inside the Bill C-18 Senate hearings. This is the second segment of hearing 1 as we try to catch up on this.

Last week, we kicked off our marathon analysis of the Bill C-18 senate hearings. That was with, of course, segment 1 of hearing 1. While it definitely had its interesting moments, we are now moving on to the second segment.

As always, you can follow along with the video we are watching here. So, let’s get right into this one.

Opening Statements

Jean-Hugues Roy began with his opening statement. He said that when he appeared during the Bill C-11 hearings, he noted that Bill C-18 was the lesser of two evils. He said it was a good way of distributing wealth on digital platforms. It’s only normal that it goes back to the media that provides this information (there’s nothing normal about this). He said that he’s talking about small businesses and we have to make sure everybody abides by a code of ethics (a code that is, in and of itself, unethical, fun). It’s a good piece of news, but the mechanism is complicated.

He goes on to say that there is the issue of transparency in 86. We have to know who is getting how much. That all remains to be determined. He read the briefs and he agreed with some of the points made by the Internet Society. Platforms have adapted to the digital world. He also agreed with the idea of creating a fund. It would be more fair if there was a fund.

However, he adds, there is one section that he considers scaremongering. There’s the issue of platforms possibly not distributing information? what about the risk of disinformation? (Perfectly legitimate concern) He said that he doesn’t buy into that argument because he feels that the businesses that are part of the regulatory framework, the new tools will have an impact on the systems (huh?). So, he doesn’t think we should get into this boat of scaremongering (I’m guessing he’s not familiar with how disinformation is published these days). He thinks that Canadians should have access to high quality information. Legislators should ensure that Canadian’s are given high quality information. (Either this is thanks to a translation fail or a witness fail. Not sure I’ll know for sure, but that basically made no sense to me.)

He said that when he was invited to appear, he was working on a research project about how Quebec media is spread. He spoke about the media and showed a graph about how revenues declined in the last two years (yup, that looks about right for COVID-19). So, Meta has been reducing interactions and subscribers (amazing how much he knows about media, yet still lived under a rock for the last two years). He then showed a second graph where online media publications have grown in the last two years. So, something is happening to Facebook according to this data. There’s non-media pages that distribute information. He thinks we have to build walls for disinformation and this is something that Senators could do (not even part of the bill, though).

From there, he said that we have to provide Canadian’s with high quality information and digital platforms are one way of providing that information. So, despite the imperfections, he thinks its worthwhile to adopt Bill C-18, but we have to work immediately on version 2 of this bill – an Act that will allow Canadian’s to continue to have access to high quality information. With that, we have to create a fund.

Konrad von Finckenstein then opened with his remarks. He said that he does not support he underlying concept of the bill at all, but it has been passed in the House of Commons. So, now it’s just a question of how one can make it better. When you implement the legislation, vagueness is very bad because it means numerous contestations, delays, appeals, and multiple decision points before it can work. The basic scheme of the Act is quite clear. The DNI’s have to identify themselves and register with the CRTC. Then, they have to negotiate with eligible news organizations. Failing that, it will go to final arbitration.

Here, he explained, are some suggestions for improvements. Who are DNI’s? The Act does not define them at all. He read out the explanation which is quite vague, listing off what qualifies. All of these, he explains, are relative concepts. There is nothing objective about it. What market are we talking about? What imbalance? At the very least, this should be more precise so there isn’t an argument of ‘it doesn’t apply to me.’ He would suggest that Senators put in some objective criteria (I agree, that would help). It seems to him that lawmakers want big large DNI’s. Example’s would be revenue of $70 million or 1 million users. Something like that, but you need an objective criteria.

Secondly, he continues, what exactly is being negotiated? The Act is very unclear. He read out what is in the bill and said that, actually, that doesn’t answer the question. When these parties get together, what are we negotiating? The action of what is being negotiated is the value of the data. The DNI’s get huge data on people who get the news. It’s not the news, it’s the data of the users. They take the data from pool sets of users who get news and other information, then they can sell it to people who make targeted advertising. That’s what it is. (This has been a longstanding disconnect in the debate over Bill C-18. No matter how many ways supporters of the bill try to contort and spread disinformation about how platforms are directly competing with news organizations, that was never the reality. The facts never matched with the claims. So, it is great to see someone else explain this critical aspect of how things actually work.) So the Act should spell out the negotiations. That, A, data obtained from DNI’s for linking and secondly, the amount of that value that should be shared with the news businesses. That’s what it’s about, it’s about the data.

Certainly, he continued, what is the outcome of the Act? Strangely, the Act doesn’t spell that out any better. It is indirectly in Section 11 where you can be exempted under the following conditions. He reads out the exceptions. All of these are government goals. They are not private goals. They are supposed to be agreements by DNI’s with the news agencies so they can get an exception. They should also be in every single negotiated agreement and they should be monitored and enforced by the CRTC.

The CRTC, he adds, is the one organization that can contribute to the sustainability of the Canadian news market. However, there is a fear of freedom of expression. You don’t want Google to be the judge to determine whether there is freedom of expression or not. It does not make any sense to put those obligations onto the DNI’s. These are government obligations that should be enforced by the government.

Certainly, there is (didn’t quite catch this?) of undue preference, discrimination, and imposing unreasonably disadvantage. Anybody who can go to the CRTC and ask for a leave, they can have a hearing and they can make orders and issue penalties of up to $10 million. That really doesn’t understand what’s going on. We are talking about ranking decisions. These are made by machines, by computers, by algorithms. You don’t want every single ranking decision appealable to the CRTC. It would be totally unmanageable. What you are really focusing on is the algorithm for Google and Facebook users. Is it fair? Is it non-discriminatory? It’s not made in favour of them or somebody else. Therefore, this should be changed to say that anybody who feels that the algorithms is designed against them can be appealed to the CRTC, the CRTC can look into it, and then, in that instance only, is it reversible. That way, the allegation has to be disproved by Google or Facebook, not the other way around. As of right now, every allegation is considered true and has to be debated by the DNI. It doesn’t make sense.

He concludes that he has an annex of four suggestions and would be glad to answer any questions the Senators may have.

Chris Pedigo then opened with his remarks. He said that he supports Bill C-18. At a time when Google and Facebook has captured nearly all of the growth in digital advertising, thereby draining them of the lifeblood of the local news press, we must learn from and build upon each others work in passing Bill C-18. (The problem is that Bill C-18 solves nothing on the front of digital advertising. All it does is further solidify the “duopoly” as he called it.)

He went on to say that he wanted to briefly go over the most important elements. First, he claims, the law would rebalance bargaining power (which has never been shown to be the case). Publishers brands are proxies for trust and value. Premium news providers have played a role in the daily search and social media habits of Canadians, allowing Google and Facebook to be dominant gatekeepers. For reference, Google and Facebook in the last decade have captured 80%-90% growth in digital advertising. For every 5 billion that grows, 4 billion goes to Google and Facebook. The lack of protection and negotiation rights for this content coupled with nearly unlimited access to the data of the web for micro-targeted advertising has led to a marketplace where publishers and their content have become interchangeable commodities (any suggestion that this problem is exclusive to news publishers is an admission that you have no solution for this problem, let alone an idea of what the problem is.)

Bill C-18, he claims, would protect intellectual property rights (it does not) and provide balance in negotiating powers with online platforms so they can provide fair compensation, and thus promote a free press (this guy has absolutely no clue what he is even talking about).

Second, the bill relies primarily on the market to determine how and how much publishers should be compensated for their content (no it doesn’t). This flexible approach allows a diverse set of publishers to seek deal terms specifically tailored to their needs (no, smaller publishers get left out entirely and the larger players get to hoover up a majority of whatever money comes from the platforms assuming platforms hand it over in the first place). Some startup publishers may want to forgo revenue in favour of audience reach (yeah, an audience reach greater than zero would be nice) while larger publishers may want to establish maximum return for their high value brands (after the coverage I’ve seen lately on Bill C-11 and Bill C-18, that’s a VERY liberal use of the phrase “high value”). He believes that government should not set rates for government, thus final offer arbitration is an elegant solution for a fair deal. (This guy is clearly a joke.)

Third, he claims, this bill only applies to a situation in which there is a significant power imbalance between the news publisher and the intermediary platform (which was ill-defined, potentially making the bill unconstitutional). Importantly, the news publisher retains the option to participate. The platform does not. (It still requires payment for news links, though).

Fourth, he claims, in no way shape or form does it change the structure of the web (that is probably the most bald-faced lie yet) or in any way demand payment for links (another bald-faced lie). This is misinformation (it’s the truth) We spent many a late hours rebutting this argument in Australia as Google and Facebook advocates have suggested that the law would break the internet (it pretty much did. Now it’s impossible for anyone else to challenge those web services dominance if it came from Australia). Not surprising, the internet works just fine in Australia. (isn’t it ironic that the guy claiming misinformation is the one spouting the misinformation?)

Fifth, he claims, the bill permits publishers to bargain as a group or individually (no, it’s only as a group). He believes it is important that the bill provides flexibility for publishers to choose whether they want to negotiate collectively or individually. As he mentioned earlier, some publishers want to retain the ability to negotiate individually for terms that are specific to their high value brands. Small and medium sized publishers may find it more effective to pool their resources and negotiate as a group (too bad many of them won’t be permitted to do so at all). This bill helps provide a flexible framework which will bring resources to a variety of news publishers (well, pad CEO bonuses and revenue for venture capital while screwing over the news rooms, but who’s counting?) In summary, they support the Online News Act – C-18. It’s a reasonable (unreasonable) and necessary (completely unnecessary) reform. It would enhance market driven negotiations (it’s not market driven if it’s mandated by the government) to enable news organizations to receive fair compensation for the content they create (even though the platforms are using content protected under fair dealing) and that dominant platforms obtain, share, and use to sell advertising. He blabbered on and ended his remarks.

(In short, don’t believe a darn thing that guy said. You could write a whole book on why he is wrong in his opening remarks alone.)

Questioning the Witnesses

Senator Julie Miville-Dechene started the questioning by turning her attention to Roy and, for full transparency purposes, noted that her and the witness were colleagues at Radio Canada. She asked about value in the media.

Roy responded that it was an estimate and estimates are easy to make. He spoke about the wealth generated by the platforms. he talked about CrowdTangle and statements by Facebook. He said that about 5% of the information circulating the platforms can be attributed to the circulation of news (so, 95% of the content on Facebook is not news related. Go figure.)

Senator Miville-Dechene asked about the complications he foresees in the bargaining process. She cited La Press as an example of a news organization without a deal with Facebook.

Roy responded that there is a scary number of players and it’s complicated. He spoke about the huge amount media concentration going on. Platforms are negotiating with each of these large number of news players and that’s complicated (now that is what I call an understatement. Most of the small players will get, at best, peanuts out of these deals anyway, though).

Senator Rene Cormier turned to Roy and asked that, with respect to the bargaining processes, how would he perceive the bargaining powers of small and medium media outlets. Would they have the tools to bargain?

Roy answered by claiming that Bill C-18 will protect the smaller players (LOL!).

Senator Cormier asked if the smaller players would have the power to bargain or would Google not be interested in bargaining with them.

Roy responded that it’s up to Google and Facebook to make that decision. The bill should include the smaller players.

Senator Cormier noted that in an article he submitted, the economic spinoffs was noted as per the Parliamentary Budget Officer. There was worry about Bill C-18 replacing the tax credits. He asked him to explain his concerns.

Roy responded that we have to ensure that Bill C-18 doesn’t replace these tax credits. The tax credits have to continue.

Senator Cardozo turned to Roy and asked about his thoughts on the model proposed by the CRTC. He also asked the same thing for Finckenstein and which agency would have been best. He also asked Pedigo about what people in other countries are saying about the bill and why it’s so very important.

Roy responded that he isn’t sure he would be the best person to ask such a question. He said that Finckenstein would be a better person to ask, so he turned it to him.

Finckenstein responded by explaining that this would be quite a challenge as this is not an area that they normally deal with. They have some experience with arbitration, but really, what you have to set up here is a whole structure. You have a code of conduct, setting up what parties can do, etc. You can borrow from another organization, but it’s going to be a fairly large task. It’s not in the nature of the CRTC to supervise. They usually make the decisions. So, it’ll be quite the strain as they look at the whole process between the parties. It’s not beyond the CRTC, but it’s something they are not used to. It’s going to be a new experience and there will, undoubtedly, be challenges both in terms of the legality of the decisions they have taken, etc.

Finckenstein further explained that, as he stated in his opening remarks, the more specific you are, the easier it is for the commission to implement it and less there will be challenges. If you have discretion – and this bill has huge discretion’s – people will say “yes, you have the discretion, but you didn’t exercise it properly.| So, he sees a very lengthy contestation before this bill starts being fully implemented.

Senator Cardozo asked if it is his view that the CRTC can play a politically neutral role in this.

Finckenstein responded that they are the (court?) of record, they will always try to play a politically neutral role, trying to fulfill the rules that the government set. Unfortunately, as he mentioned, the rules are not really spelled out and it would be helpful if they set everything in section 11. That’s the goal, that’s what you are trying to do. The bill does not do that right.

Senator Cardozo asked if it can be done in regulation.

Finckenstein responded that of course it can be done in regulation. Regulations can be done in the direction from the government too. Again, the direction from the government are never quite clear. It’s somewhat ambivalent with all the political directions. Second, if you do up a regulation, is the regulatory power sufficient or do you have to step beyond it? It will be challenging to be sure.

Pedigo responded that this is a very thoughtful conversation, but this conversation is happening around the world. After all kinds of threats to withdraw from the market, Google and Facebook ultimately did not (I think Spain from the mid 2010’s would have something to say about that) because they see the value in being in those markets and he thinks that a similar dynamic would play out in Canada. (There’s a difference in being in those markets and choosing whether to carry news links or not.) He said that there is a lot of concern about Google and Facebook’s activity revolving around the treatment of news media. There have been a number of lawsuits revolving around the treatment of the platforms on news media and there have been a number of lawsuits filed by State Attorney Generals (the lawsuits that I’m aware of against Google was much more broad than that, actually). Also, Congress is actively considering the JCPA (a bill that was heavily criticized and has been shelved for now) which is a very similar version to Bill C-18. It has a wide swath of bipartisan support.

Pedigo continued by saying that Canada’s debate is, in some ways, more evolved, but it’s part of a bigger conversation that is happening around the world.

Senator Pamela Wallin turned to Finckenstein and asked why we even need this bill at all. What does he think the governments objectives are. Related, as Finckenstein noted, the CRTC is not ready to take this all on. It has a huge new role with Bill C-11, so we can see this expanding. So many questions are left to the discretion of the CRTC which is a body directed by cabinet.

Finckenstein responded by saying that he thinks that the government is trying to keep alive certain newspapers and news makers who are suffering very much because the platforms has a better mouse trap for advertising. So, they are trying to even the playing field and that the value derived from platforms are from newspapers and that some of that value should be going back to them.

Finckenstein went on to say that, how would they go about that? They are opting for the Australian model. The Australian model, as the Senators earlier that morning, has never been implemented. Some people are calling it the Australian holdup. Basically, the legislation was finally put in there, Rupert Murdoch and Google and Facebook struck a deal, nobody knows what the deal is, it is secret. It is a five year deal. Because of that, the government never named a person in which this act applies. We are not going that way here. We have an act that says it is going to apply to everybody. As he pointed out, the (identities?) is somewhat questionable. Once we are there, it is going to apply to everyone.

Finckenstein then added, is this the best way? Personally, he thinks it’s going to be a very long wait. It is going to be very contested and it will be a big challenge for the CRTC. Truly, they will come up to it eventually. It’s not going to be overnight because, as the Senator noted, they have a huge amount of work with Bill C-11 and here, you have given them a whole new area to deal with which is, by and large, strange to them.

Senator Wallin asked if the CRTC has the expertise to do the jobs of Bill C-11 and Bill C-18 and anywhere close to the infrastructure in the bodies to do it.

Finckenstein responded that he thinks that they will have to set up a new division to deal with Bill C-18 and bring in the necessary expertise and probably contract out a lot of it. It’s a code of conduct. He doesn’t think anyone in the CRTC are capable of doing it. THey can get people to draft it for them and get other people to put it out for comment and then adopted, etc. All of it is not done overnight. It takes a long long time.

Senator Wallin said that one of the most important comments that he said today is that this is about the value that the platforms collect, not the news content that they share. So, this seems to be on the list of unintended consequences – making the big platforms even more powerful and influential (Bingo!).

Finckenstein responded that this is the part that he doesn’t like. Through the agreements, they will control what is in the agreement and, in effect, try to implement government objectives. If you go through Section 11, those are government objectives. Those are not the objectives of Google or Facebook. Why should they enter into an agreement with the other party?

Senator Peter Harder turned to Pedigo and commented that, clearly, we are at a tipping point globally. Some say that, depending on how Canada concludes will have a significant influence will have a significant impact beyond just Canada. He asked if this influences the stand Google and Meta are taking here. How does he interpret their threats relative to that of the American and European markets. (Spoiler: The more this costs the platforms, the more the platforms are likely to drop news links altogether.)

Pedigo responded by saying that there is clearly a pattern of behaviour from Meta and Alphabet. When they come across a law they don’t like, they often threaten to leave the market. They did that before the GDPR was passed into law in Europe. They did that with the European link tax. They did that with the Australian News Bargaining Code and they are doing that here today. It’s very clear that the messaging is very much not just for legislators here in Canada as it is for legislators in the US market. They are trying to draw some clear lines and make a stand against this kind of framework. It’s important to understand what happens when these bills become law. In Australia, they moved very quickly to secure deals (after changes to the law were made) and they have done similar work in Europe and he expects that this would happen very quickly here in Canada (go ahead, don’t change the law and see how quickly you are wrong on that assumption). In fact, they have already started doing some of that preemptively here, signing news deals here in Canada. That may be partly PR and trying to head off the need for this bill, but to be clear, they can move quickly and will likely move quickly (without changes, they will move very quickly to drop news links altogether.)

Senator Harder turned to Finckenstein and noted that his experience at the CRTC is a very big reason why he is there. There seems to be different views among the CRTC alumnus as to whether the CRTC has the capacity or not, is the right organization or not, can we all at least agree that to implement this legislation, that the competency this legislation describes somewhere, and is it not better, in Finckensteins view, to add it to an existing organization that is familiar with and related to the experience that it has had in terms of oversight in this. It’s a bit of a machinery of government for which legislators are not particularly gifted.

Finckenstein responded by saying that they both agree that it is much easier to add something on to an existing organization then to create a new one. If you give this to the CRTC, you have to give them the necessary tools and resources of it and you have to have the structures. Right now, does it really make sense or do you have some sort of structural changes to the CRTC vs the way it is set up now? With broadcasting and now digital, you have to change the whole structure of how it operates.

Senator Harder said that he doesn’t dispute that, but he would also suggest that, should the bill be passed, they have the competency or capacity or will gain the capacity to do exactly that and that we are, in a sense, arguing over the details of how an arms length regulatory body ought to be organized. Surely, that is something that the competency that the existing CRTC players will have to reflect on and we’ll have to hear from them as to how they will implement and whether or not the Act, as written, provides the appropriate guidance and direction. It certainly wouldn’t be a surprise, as Finckenstein suggested, that it would be contested. Everything is contested. (Dude, the vagueness of the law is the problem here.)

Finckenstein responded that he agrees with him that, of the existing organizations that we have in the Government of Canada, the CRTC is the logical place to put this here. He’s not so sure that he agrees with the Senator that they are equipped as they are now to do- it would have been very helpful for them to have specification in the Act and also certain structural changes to the organization. If it’s not there, as he said, therefore, it will take a long time to implement.

Senator Donna Dasko turned to Finckenstein and said that she absolutely agrees with Senator Wallin about the value proposition for the DNI’s is to get the data from the organizations (I think she misheard her). You would think that would naturally be part of the negotiation between the two. Is he suggesting that this value should be recognized in the legislation? Does he think it should be put in as a specific point?

Finckenstein responded that they are asking people to sit down and negotiate. We are saying that we are seeing remediation. If there is no remediation, there will be arbitration and you will have to live with it. The Act does not specify what are you negotiating about. What are we really getting? It’s not the news, as such. It is the data that the platforms obtain from the news makers. They, then, through their own algorithms that are mixed with other data, are able to identify and target groups for advertising. It is going to be very complicated to do this. The persons with the data an know what they are doing are the platforms. So, if you put it to them, that’s what you are doing. You are getting data from here and you are using it. How much of that should be shared with the newspapers? Different newsmakers contribute differently. Therefore, they will get different demands and, as such, different rewards.

Senator Dasko said that she was just wondering if this should be recognized somewhere or not.

Finckenstein responded that he’s given Senators amendment suggestions. That’s what we are getting at, the value that the platforms get and negotiate about that.

Senator Dasko then said that she wanted to go over undue preference about algorithms and about how some organizations may want to claim discrimination in the way they might be treated by a DNI. Most algorithms are based on the primary factors of users and what users are doing and where they are going and what kind of content they are interested in. So, is anything beyond that data point, is anything beyond that discrimination? It’s not the only factor in an algorithm. Even if it is the main factor, there are other factors that are part of an algorithm. So, does Finckenstein think that anything beyond user behaviour could be considered discrimination?

Finckenstein responded that he thinks if you look at Section 57, it’s about undo preference or discrimination. It it is within the aim of the operation of your platform, you are complaining to the platform that you are discriminating, you are giving preferential treatment, you are giving undue advantage, so what does the platform do? It ranks. People go on that platform and ask for information, products, or whatever. You feel you are being discriminated on the platform in the way they are ranking. It all comes down to ranking. The ranking activity is not driven individually. It’s not a single decision, it’s all done- but if you read Section 51, the way it reads, it doesn’t even refer to it as that, it just says “discrimination” or “undue advantage”. Then, when you go further, hidden in Section 69, when there is a complaint and it is being adjudicated, the onus is on the platform to show that they do not discriminate. It’s reverse onus. He doesn’t have a problem with that because you created the platform, but let’s make sure that if there is a complaint, it is done in the way you design the algorithm. You designed it so that it discriminates against me. If I am number 10, why am I number 10?

Senator Dasko said that if you are number 10, maybe it’s because people don’t like you.

Finckenstein responded that that’s not- if they rank you number 10 because no matter where or what the data shows, you are the 10th choice, then you are perfectly fine to do that.

Senator Housakos said that there is a question that he is trying to get the answer to. The objectives of this bill is to try to deal with disinformation. Of course, he always believes that it’s always a slippery slope when governments start getting engaged in what is valuable information and what is misinformation. Every government believes that they should not be open to scrutiny and they have a thin skin. So, his question is that in looking at this bill, who would be dealing with what is disinformation? Who will create those parameters? Is he right to think that we are going down a slippery slope with this?

Finckenstein responded that disinformation is a very large topic. He doesn’t think you want to do this as a side issue in this bill. The government has announced that they were going to bring forward some information about it – some legislation about it. It’s a very touchy topic. What is disinformation to one person is not to the other. What is terrorism and what is legitimate dissent, etc. These are all very grey areas. He can’t think that this is something you want to deal with in an act that is basically here in order to support newspapers. It’s not an issue that you can put in on the side.

Roy responded by saying that all he can say is that if we have fewer press outfits, we’ll have fewer journalists in Canada and disinformation is only going to grow. So, Bill C-18 is a mechanism that does support the production of information in Canada in his opinion and he thinks that its a good mechanism to fight against disinformation.

Senator Housakos said that he would like to know how it is going to do this. It’s good when you say it’s a good bill because it is going to deliver some more money to the media that’s not currently available, but what about managing disinformation?

Finckenstein responded that journalists are journalists from an accredited news organization. Presumably, most of these news organizations have an internal mechanism for discipline and maintaining standards. That’s probably a more eloquent way of dealing with that.

Senator Housakos said that they are all self-governed. If you look at the Canadian media standards, if you look at the Parliamentary Hill media, they are self-managed. They create those standards.

Senator Cormier turned to Roy and noted his concern for small media outlets. Obviously, the deals struck by the big media outlets and the intermediaries. They will have the resources. However, he is very concerned about the resources the small media outlets to enter into these agreements that will be in their interest – especially when they are voluntary. In Roy’s opinion, is there something in the bill that accounts for this concern that he has. Roy seems to be reassured by this bill that the fate of the small players will be considered.

Roy responded that nothing stops them from collaborating and pooling their efforts together. Nothing will prevent them from working as a block to negotiate these agreements.

With that, the hearing was adjourned.

Concluding Thoughts

Once again, I don’t think we really have a case for Bill C-18 at all. So much hinges on this notion that platforms make money, therefore, it should all go to the media outlets. It’s a real disconnect on what the lobbyists push and what actually goes on in the platforms. The number one reason why people use Facebook is to communicate with friends and family. For Google, people tend to use it to search for information whether it is guides, product information, or really, a whole pile of other reasons. There’s a real hangup on this notion that the only reason these platforms are successful is because of the news businesses. What I found telling in Roy’s testimony is that news only made up 5% of the total content flowing through Facebook. That alone should tell you everything you need to know about the mythology that platforms are wholly revolved around news content. They are not.

What’s more, the legislation hinges on this notion that linking to news articles is an activity that requires a license. This completely flies in the face of copyright and fair dealing. So, the core concept of “fairness” revolves around a right that ultimately doesn’t exist. What the bill tries to do is literally invent a new right out of thin air and mandates that such content requires compensation. Further, to date, there has been no evidence that platforms are publishing whole articles and generating revenue off of it. All evidence points to links, thumbnails, and snippets that were put on the platforms by the publishers themselves.

What I also found hilarious is the notion by Pedigo that the platforms always threaten, but then come around once a bill like this becomes law. First of all, that is completely untrue because what happened in Spain in the mid 2010’s is that the country proposed a similar law, then Google pulled out, and the traffic to those news organizations in the country, predictably, plummeted. This left those organizations to beg for Google’s return to the country. Over top of that, it is wishful thinking that if you ignore Google and Facebook, that they will magically come back and just comply with everything you put forth in the law. This is extremely foolhardy and presumptuous and based on wishful thinking that they will always behave the same way. The history simply never shows that this is always the case. What’s more, the economic drivers pushing these platforms are changing – and definitely not changing in a way that favours those pushing the bill.

At the end of the day, Google and Facebook just magically “coming to” and cooperating is basically asking for an all out miracle to happen. You can wish for a miracle all you want, but that doesn’t mean it is a certainty that those events will go down that way. It would be a silly funny thing to watch on the sidelines if it didn’t mean everyone gets screwed if the big media outlets are wrong on that. Once Google and Facebook pull the news links, that’s it. The alternatives aren’t going to fully backfill the traffic you lost because of a really bad bet you made today with Bill C-18. The most you can hope for is to mitigate the damage.

Ultimately, the defences of the bill were completely unconvincing to me and only further fuelled my thinking that the backers of the bill don’t really know what they are doing.

Drew Wilson on Twitter: @icecube85 and Facebook.



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