The Bill C-18 Regulation Fake-Out: Setting the Record Straight on When Bill C-18 Takes Effect and the Regulation Making Process
The Bill C-18 Regulation Fake-Out: Setting the Record Straight on When Bill C-18 Takes Effect and the Regulation Making Process
There are no regulations to be discussed that change the core elements of the law. It’s been decided, has received royal assent, and kicks in anytime within the next 120 days.
The rhetoric around Bill C-18 has escalated in recent days in light of the awful wildfires in NWT and British Columbia. In my view, the issues associated with these tragic events have little to do with Meta blocking news links and the attempt to bring it into the conversation is a transparent attempt to score political points (the connectivity issues with some NWT communities completely taken offline for days is somehow never mentioned). The reality is that Meta was asked about just this scenario at committee and it made it clear that it would not block any non-news outlet links. That is precisely what has been happening and the government’s legislative choices should be the starting point for understanding why compliance with the law involves blocking a very broad range of news links that extend beyond even those sources that are defined as “eligible news outlets”.
The government and supporters of Bill C-18 talking points now emphasize two things in relation to Meta blocking news links: the law has yet to take effect and there is room to address their concerns in the regulation-making process. Both of these claims are incredibly deceptive, relying on the assumption that most won’t bother to read the actual legislation. If they did, they would see that (1) the law has received royal assent and can take effect anytime and (2) the regulation making process addresses only a small subset of Bill C-18 issues with most of the core issues finalized. In other words, the time to shape the law and address many of the key concerns was before the government repeatedly cut off debate in order to ensure it that received royal assent before the summer break.
Start with when the law takes effect. As noted above, the law has been passed and received royal assent. It is the law of the land and there is no scope for changes or amendments without a new bill that must be passed by Parliament. Section 93 establishes when the provisions come into force. The law initially envisioned a staged approach whereby certain sections would be proclaimed in effect by the government in stage one, followed by four additional stages, some of which were contingent on certain regulations coming into force. Yet at the last minute the government approved a Senate amendment that basically discarded the entire approach. Section 93(6) states:
(6) Despite subsections (1) to (5), any provision of this Act that does not come into force by order before the 180th day following the day on which this Act receives royal assent comes into force 180 days after the day on which this Act receives royal assent.
The entire law therefore takes effect no later than 180 days after royal assent, which is December 19, 2023. This change was included at the urging of the Canadian media sector (specifically Quebecor) which lobbied to have it take effect as soon as possible. Under this approach, the law can take effect at any time as the government need only issue the relevant Orders-in-Council. There is now little wiggle room. As of today’s post, the latest the law will take effect is in 120 days but it could happen well before that.
Once the law takes effect, the clock on negotiations and potential mediation and arbitration begins. The timelines are fixed in Section 19(1) of the law: 90 days to negotiate and 120 days for mediation. If there is no agreement and no request to the CRTC to extend the deadlines, the issue can go to final offer arbitration. To be clear, none of these timelines are subject to the regulation making process. They are fixed and they create obvious urgency for anyone facing compliance requirements.
The regulation making process is the other issue worthy of closer examination, given the misleading claims about the ability to use the process to address concerns with the law. Start with some of the issues that are not subject to any new regulations:
All the definitions, including the definition of digital news intermediary, news business, news content, and news outlet.
The requirements related to “making available of news content”, which includes both reproduction and “facilitating access to news” such as linking. These are already defined and there are no additional regulations forthcoming
The ability for the CRTC to issue an interim order or repeal an exemption order with respect to digital news intermediaries
The timelines, steps, and scope of the bargaining process
The limitations on copyright user rights in the bill, including restricting the right of platforms to cite copyright limitations and exceptions
Which news outlets are considered “eligible news businesses”
All the rules related to the arbitration process, including selection of arbitrators, dismissal of offers, and much more
The rules on discrimination, preference and disadvantage
The rules on production orders
In case this list isn’t obvious, this is the vast majority of the law. There are no forthcoming regulations and nothing further to discuss on them as all of these provisions have received royal assent.
So what is still subject to potential government regulations? Section 84 spells out most of them:
The Governor in Council may make regulations
(a) respecting the factors set out in section 6;
(b) respecting the time at which or the period within which an operator must notify the Commission under subsection 7(1);
(c) respecting how the Commission is to interpret subparagraphs 11(1)(a)(i) to (viii);
(d) setting out conditions for the purposes of paragraph 11(1)(b); and
(e) setting out conditions in respect of a provincial public broadcaster for the purposes of section 28, if the provincial minister responsible for that broadcaster has made a request to the Minister.
Translated from legalese, these cover:
(a) The factors that are to be considered if there is a “significant bargaining power imbalance” between digital news intermediaries and news outlets
(b) When a digital news intermediary must notify the CRTC that the law applies to it
(c) How the CRTC is to interpret the rules on granting digital news intermediaries an exemption from arbitration (ie. approve the private deals struck by the platforms)
(d) Regulations that establish new conditions for granting an exemption from arbitration
(e) Regulations for including provincial public broadcasters such as TVO as potential eligible news outlets
In addition, Section 76 establishes the power to establish a host of regulations related to penalties. Beyond the government, the CRTC will be empowered to establish regulations on a wide range of issues, but those are supposedly independent of government and not part of this process.
That’s it. The claims associated with the government’s regulation making process have been vastly overstated. Indeed, if it was the platforms making the claims, they would probably be called disinformation. About the only regulation that really matters right now involves Section 11, since it sets the criteria for an exemption from arbitration and approval of the deals between platforms and media companies. The reports about Google and the government negotiating aspects of the law surely involves what the exemption criteria is and how it will be interpreted. For example, the inclusion of a minimum spend by way of regulation would provide cost certainty and effectively have the government dictate to the CRTC how the criteria should be interpreted (namely, ignore them all if Google meets the spending target). The remainder are minor and have no real impact on how the law will be applied to Meta or Google.
When News Media Canada says “what we’re saying to Meta is, ‛The regulations aren’t drafted yet. Pick up a pen. Put down your saber and let’s try to work through this together” it’s a fake out designed to deceive. There are no regulations to be discussed that change the core elements of the law. It’s been decided, has received royal assent, and kicks in anytime within the next 120 days. News Media Canada and the associated lobby groups won the battle for Bill C-18. It’s the resulting consequences they don’t like.
Post originally appeared at https://www.michaelgeist.ca/2023/08/the-bill-c-18-regulation-fake-out-setting-the-record-straight-on-when-bill-c-18-takes-effect-and-the-regulation-making-process/
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