Senators Won’t Rubber Stamp Bill C-18 (Link Tax), Hearings Likely

Senators have signalled that they would not simply rubber stamp Bill C-18. This increases the chances that there are going to be hearings.

During the last government, when the social media censorship legislation was known as Bill C-10, Heritage Minister and complete trainwreck, Steven Guilbeault, tried to pressure the Senate by “introducing” the legislation to the Senate even as the legislation hadn’t gone through all of the regulatory hoops at the House of Commons level. The tactics drew backlash from Senators who called the move “insulting”. Ultimately, this solidified the push to bring the legislation to Committee for a proper hearing process (a process that was completely absent at the House of Commons level).

That moment was one of many instrumental steps that brought us to what is ultimately a miraculous development. That development being that the Senate committee fixed the biggest problem with the legislation. Sadly, this also came with the inclusion of age verification laws, something that no witness asked for, but was slipped in at the last minute, turning this legislation into a Trojan Horse for massive violations of personal privacy. At any rate, those 11th hour changes are not set in stone yet and both can theoretically still be reversed.

Now, it seems that history could be repeating itself to a degree. A report suggests that Senators are not going liking the idea of being a rubber stamp for this particular bill. From the Globe & Mail (probably paywalled):

Senators say they will not be rushed by the federal government into pushing through its online news bill after it passed the Commons this week, as Facebook renewed its threat to block Canadians from viewing news on its site.

Facebook said the bill passed by MPs will primarily benefit broadcasters such as the CBC, rather than regional and local newspapers, and urged the Senate to look closely at its implications.

When it returns at the end of January, the Senate will begin scrutinizing Bill C-18, including in its transport and communications committee, which has the power to call witnesses.

But senators told The Globe on Friday that they will not be pressed into waving through the bill.

Senator Paula Simons, a journalist for 30 years, said she thought the bill was flawed and “dubious” and she had “grave misgivings” about it.

“The Senate is not in the business of rubber-stamping bills,” she said.

Senator Leo Housakos, Conservative chair of the Senate committee, said he was ” looking forward to taking a closer look at C-18.”

“I can say that there are some troubling aspects of C18, namely that … it won’t benefit those the government purports it will benefit, i.e. independent local media, but rather the large broadcasters, including and perhaps mainly CBC,” he said.

The article goes on to cite the Parliamentary Budget Officer estimating that the legislation could extract $329 million from the largest platforms. However, recent reports suggest that this estimate might have over-estimated this by over 50%, pegging the actual value to a mere $150 million. Assuming the 75-25 split between the wealthiest broadcasters and everyone else, the payout that small outlets could get might not even cover the cost of hiring a part time minimum wage employee. What’s more, a recent amendment to Bill C-18 means that broadcasters wouldn’t even need to produce news to benefit from the link tax bill.

Senators noted that there is also uncertainty with this legislation:

Senator Julie Miville-Dechêne, who also sits on the Senate committee, said it would not “be rushed” into passing the bill into law.

“I think we should take the time to review it seriously,” she said. “There’s a lot of uncertainty with this bill.”

Senator Pamela Wallin, also a former journalist who sits on the committee, said the Senate’s job was to give “sober second thought” to legislation and it will be doing that with Bill C-18, including improving poor drafting.

“The bill is complicated and in my own mind ill-conceived, and it needs a lot of work,” she said.

Indeed, there is a heck of a lot of uncertainty associated with Bill C-18. As we pointed out in our original analysis, there is no way for outlets to opt out of this legislation. So, no matter how outlets feel about the legislation, the law mandates that links posted to our site requires payment – thus flipping core basic concepts of copyright law and fair dealing on its head. At the same time, it bars news sites like Freezenet from ever being “eligible” to receive any funding.

In addition to this, there is the very real risk of international trade retaliation from the United States. Earlier this month, the United States has formally expressed concerns with both Bill C-11 and Bill C-18 a second time. That followed a CCIA White Paper which lays out the many provisions Bill C-18 violates. With both evidence of what Bill C-18 violates in CUSMA as well as the credible threats directly from the United States, there is that very real risk of sparking a trade war with the only country Canada shares a land border with.

Over top of that is the news back in November where Meta laid off 18% of its work force as a cost cutting measure. This was followed up by fresh warnings last week that Facebook could choose to block all news links in Canada – warnings that were also repeated in the US as well in response to the US version of link tax legislation.

The effect of using what some have describes as the “nuclear option”, the effects would be devastating to any news website that depends on traffic from Facebook. Facebook would be largely unaffected, but many outlets (not including us miraculously enough) could be pushed to the brink of financial collapse because of the move. Legally, there is not a whole lot either the media or the government could do should Facebook actually carry through with the threat. Could Canada pass a law making it illegal to block news links? Sure, but good luck getting something like that to pass constitutional muster.

The truth in the matter is that outlets have depended on the free traffic from Facebook for a long time now. For Facebook, media outlets makes a tiny fraction of a percentage of their overall business. An estimate has pegged news links making up only 4 in every 1,000 posts on the main feed. The return on investment, assuming there is any at all, is terrible for Facebook to put it mildly. So, in light of the cutbacks and fears of a recession next year, what motivation does Facebook have to go along with this at this stage in the game?

At any rate, it’s good news to hear that the Senate will give this much closer scrutiny. Hopefully, we’ll at least have a process similar to the Bill C-11 hearings where proper study of the bill can at least take place. So far, that hasn’t really happened up to this point, so it would really be nice if that happened. Who knows? Maybe something could be fixed in the process.

Drew Wilson on Twitter: @icecube85 and Facebook.

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