With Meta in the process of blocking news in Australia, some have argued that discrimination clauses in Bill C-18 will save everyone. They won’t.
The Online News Act (formerly Bill C-18) has been a complete failure. With Meta dropping news links in Canada and the Canadian government desperately folding to Google in their bid to ensure the damage the legislation unleashed on the news sector is isolated to just Meta, the very concept of payments for links officially died.
With Meta announcing that it would be ending its deals in Australia, Australian publishers are facing the very likely prospect that the same thing will happen in their country. Journalists working for large media companies in that country have started pumping out propaganda and disinformation in their effort to try and talk their way out of their sinking situation. With the way things are headed, things will work out about as well as the Canadian situation where all the propaganda in the world won’t save them. Australian media companies are facing the consequences of their actions where their greed is about to see them get kicked out of a huge part of the digital revolution.
We’ve seen a number of arguments get advanced in all of this. Many of these arguments are simply repeats of what we saw in Canada. One argument was that large media companies will use anti-competitive laws to get Meta to restore those links. Such arguments are easy to dismiss outright given that Meta leaving the market is literally the exact opposite of abusing the market. Obviously, the media companies aren’t going to let pesky facts get in the way of their own reality bubble. After all, they did file a very silly complaint with the Competition Bureau as their way to reject your reality and substitute it with their own. Little wonder why nothing has really come from that complaint to date.
Another argument we’ve heard is that international trade agreements will put a stop to Meta dropping news links. This off and on comment has always been followed up with no real specifics. What trade agreement are you going to use? Which clause? Those two simple questions have never been answered out of all of the times we’ve heard this argument getting advanced. It’s always just vague hand gestures towards international trade agreements, hoping someone else will figure it all out. The simple truth is that there’s nothing to figure out: there’s nothing to be found in these international trade agreements that will help publishers out here. Anyone out there can try and prove me wrong by citing some specifics for a change, but no one has done so to date.
A third argument I’ve heard is that Meta blocking news links in Canada is a violation of the anti-discrimination clauses found within the Online News Act. I’ve seen this argument off and on throughout the Bill C-18 debate and am now occasionally seeing this get referenced as Meta moves forward with blocking news links in Australia. If this was a viable path forward, the basic logic is that publishers would’ve challenged Meta on this front. Simply put, that hasn’t happened to date. There’s a very good reason for that: there’s no legal path to move forward on that front. That’s something I don’t recall really fully unpacking and thought this article would be a great example.
What sparked this was Dylan Lindgren commenting on an article and ultimately tagging me in the discussion. I happily answered his questions to the best of my ability at the time, but first, let’s look at an excerpt from the article that started this whole conversation. The article was published on the Financial Review and features these comments:
It looks very likely Stephen Jones, assistant treasurer, will “designate” Meta to try to force it to pay up. It will almost certainly respond by pulling news off its platform, which it has apparently been reassured will mean it is not covered by the code.
Now, some of these publishers have discovered their Instagram accounts have been suddenly reviewed and marked as “news media”. Adding insult to injury, they’ve been blocked for Canadian readers. Talk about cruel and unusual punishment.
“We reviewed your page and determined it is a news outlet,” Aussie publications, which asked for anonymity, were told. “In response to Canadian government legislation, content from news outlets can’t be shared in Canada.”
The only publishers caught by Canada’s laws are those that “regularly employ two or more journalists in Canada”. Australian news outlets … don’t.
So that makes this suspect. Meta has denied it’s anything linked to a decision about news. But what seems like a minor, back-end change has now fuelled a growing suspicion that Meta is gearing up to boot publishers off.
While the author is correct that Meta will likely drop news links, the author also appears to be extremely confused as to how the Online News Act actually works. So, let’s try to correct the record by referring to the actual section of the law the author is referring to. Specifically, this is section 27 of the Act:
Eligible news businesses — designation
27 (1) At the request of a news business, the Commission must, by order, designate the business as eligible if it
(a) is a qualified Canadian journalism organization as defined in subsection 248(1) of the Income Tax Act, or is licensed by the Commission under paragraph 9(1)(b) of the Broadcasting Act as a campus station, community station or native station as those terms are defined in regulations made under that Act or other categories of licensees established by the Commission with a similar community mandate;
(b) produces news content of public interest that is primarily focused on matters of general interest and reports of current events, including coverage of democratic institutions and processes, and
(i) regularly employs two or more journalists in Canada, which journalists may include journalists who own or are a partner in the news business and journalists who do not deal at arm’s length with the business,
(ii) operates in Canada, including having content edited and designed in Canada,
(iii) produces news content that is not primarily focused on a particular topic such as industry-specific news, sports, recreation, arts, lifestyle or entertainment, and
(iv) is either a member of a recognized journalistic association and follows the code of ethics of a recognized journalistic association or has its own code of ethics whose standards of professional conduct require adherence to the recognized processes and principles of the journalism profession, including fairness, independence and rigour in reporting news and handling sources; or
(c) operates an Indigenous news outlet in Canada and produces news content that includes matters of general interest, including coverage of matters relating to the rights of Indigenous peoples, including the right of self-government and treaty rights.
While the clause referenced in the article is, indeed, there (specifically section 27(b)(i)), there’s the entire rest of the clause that was left out. Does the news outlet follow a standards or code of practice? Does the outlet focus on a particular topic or is it general? These are among the other considerations that need to be addressed to determine eligibility outside of being covered by the Income Tax Act or determining if it’s an indigenous news outlet. To say that the only consideration is whether or not the outlet regularly employs two or more Canadian journalists is simply wrong and suggests that the author in the Financial Review article didn’t really bother to fully understand that section of the Act.
Further, it’s entirely possible that Meta is just refining its response to the Online News Act. After all, trying to identify who is and isn’t a news outlet is an extremely large undertaking. There are hundreds of thousands of outlets out there to properly identify in the first place.
Besides, if you want a sign that Meta is preparing to drop news links in Australia, you can always just look at Meta’s move earlier this month to end its news tab in Australia and the US. That is arguably a much bigger sign that Meta is serious about dropping news links in Australia. Meta classifying Australian outlets as per the Online News Act might be more coincidental in the end.
In response to all of this, it sparked a rather interesting discussion about what counts as discrimination as per the Online News Act and what doesn’t. Section 27 is relevant in this discussion, but we would need to also add sections 51 and 52 in this discussion. Those sections read as follows:
Prohibition
51 In the course of making available news content that is produced primarily for the Canadian news marketplace by news outlets operated by eligible news businesses, the operator of a digital news intermediary must not act in any way that
(a) unjustly discriminates against an eligible news business;
(b) gives undue or unreasonable preference to any individual or entity, including itself; or
(c) subjects an eligible news business to an undue or unreasonable disadvantage.
Complaint
52 (1) An eligible news business or group of eligible news businesses may make a complaint to the Commission if the business or group has reasonable grounds to believe that an operator has, in relation to the business or a member of the group, contravened section 51.
Factors to take into account
(2) In determining whether an operator has contravened section 51, the Commission may take into account any factor it considers appropriate, but it must take into account whether the conduct in question is
(a) in the normal course of business for the operator;
(b) retaliatory in nature; or
(c) consistent with the purposes of this Act.
Dismissal of complaint
(3) If the Commission is of the opinion that a complaint under subsection (1) is frivolous, vexatious or not made in good faith, it may dismiss the complaint summarily.
The wording here is highly relevant to this question. The ultimate question here is if a small Australian outlet is blocked in Canada, does that mean Meta triggers any of these provisions? The short answer is “no”.
Section 51 is clear that the Act’s discrimination clauses only revolve around eligible news outlets as per Section 27. So, the first question is: do you operate a news outlet that is eligible as per Section 27? This especially if you are producing news in Canada for a Canadian audience. If not, then the anti-discrimination clauses simply don’t apply to your outlet. If, however, you are an eligible outlet, then you can proceed to Section 52.
Moving to Section 52, you could, in theory, file a complaint with the Commission (in this case, that is the CRTC). That complaint can only revolve around a complaint that is specific to your outlet. Is your outlet being discriminated against by the platform in question? Some people might be following the logic and saying “yes”, but here is where these arguments begin to fall apart.
The purpose of these sections is to help monitor for irregularities for when deals are made. One of the scenarios envisioned by lawmakers when writing these sections is that a media company demands higher payments for linking. So, in response, the platform resists against this by dropping algorithmic priority for that outlet in an effort to pressure them to pack off their demands for increased payments. Do you see the problem with this? Yes, this hinges on there being an actual deal to be in place in the first place. Obviously, those deals with Meta in Canada never happened in the first place.
Because every eligible news outlet is being blocked from posting links to Meta, there’s no discrimination taking place in the first place. One eligible outlet isn’t getting preferential treatment over another eligible outlet. Everyone is getting their links blocked across the board because Meta has, in the eyes of the government, exited the marketplace altogether. Because Meta has exited the marketplace altogether, then the Online News Act no longer applies thanks to the language of “In the course of making available news content that is produced primarily for the Canadian news marketplace”. You have to have “news content” available in the first place to trigger all of this. With no links to eligible news organizations on the platform, those sections do not apply.
This means there is a regulatory catch-22 at play working against the publishers. If an Australian publisher wants to challenge Meta on discrimination grounds, it first has to be an eligible news outlet as per the Online News Act (ala Section 27). Once that outlet becomes an eligible news outlet, then Meta simply blocks links to it on their platform, meaning they just kick themselves out of Meta as far as Canadian audiences are concerned, shielding Meta from all potential liability under Sections 51 and 52.
That is very likely why Meta was never actually challenged in Canada over these sections in the first place. So, where does that leave Australian publishers? Well, if there is any hope to keep the argument alive that Meta is engaging in discriminatory practices, then they would have to rely on the Australian link tax, the News Media Bargaining Code. If there’s something in there that keeps the discrimination argument alive somewhere in there, then that is what Australian publishers will have to rely on. After all, there’s nothing in the Online News Act that, as far as we’re concerned, is going to help their cause. No amount of re-imagining what “discrimination” is is going to change that as far as we’re concerned.
