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February 25, 2022updated 30 Sep 2022 11:04am

How Canada’s Online News Act will differ from Australia’s news media bargaining code

By William Turvill

Canada’s government has pledged to create a “more transparent” version of Australia’s media bargaining code as the North American country seeks to force Google and Meta to pay for news.

Pablo Rodriguez, the minister of Canadian Heritage, has revealed that the rules would be introduced through the Online News Act. He said the government would introduce the bill “as soon as possible”.

Canadian news publishers were hopeful that the act would be tabled in Ottawa’s parliament as early as next week. But it is now understood that the legislation could be delayed by more pressing concerns over Ukraine and protests in Ottawa. Publishers spoken to by Press Gazette, though, remain hopeful that the laws will come to pass either in June or September.

Speaking at a digital conference hosted by think-tank Canada 2020 on Wednesday, Rodriguez divulged several new details about Canada’s plans to force big tech to pay for news content. In particular, he offered some clues about how Canada’s rules would differ from Australia’s news media bargaining code.

Rodriguez (pictured above with prime minister Justin Trudeau) said:

● The Online News Act, like Australia’s code, will compel Google and Meta to agree licensing deals for the online content of broadcasters as well as written news publishers. Previously, it was unclear whether broadcasters would be included

● Canada’s government wants there to be “more transparency” around big tech-media deals than is the case in Australia

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● Canada’s system will be overseen by a regulator that will have objective criteria to decide which companies should be affected by Online News Act rules

● Unlike in Australia, the Canadian government will not play a role in “designating” platforms that are subject to the rules

● As in Australia, news companies will be given collective bargaining rights to allow them to negotiate with Google and Meta in groups

● Google and Meta will be judged by their deals with Canadian news companies large and small – they must “contribute to the sustainability, the existence, of a free, independent press”.

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The designation difference

Based on Rodriguez’s comments, the biggest area of differentiation between Canada and Australia will be the designation of platforms.

Under the Australian code, the government’s treasury department decides whether to “designate” platforms and make them subject to the bargaining rules. So far, neither Google nor Meta have been designated by Australia’s treasurer because he has been satisfied with the deals they have agreed with media companies.

Rodriguez indicated on Wednesday that, in Canada, designation will be handled by a regulator and that its decisions would be based on objective criteria

“There will be a regulator with very specific criteria, so you will easily be able to identify a platform that is in that situation,” said Rodriguez. “And when that platform is in that situation, a quasi-monopoly… that platform will have to enter into market-based negotiations with our news organisations.”

He added: “In our case, it’s not going to be the minister that will designate. It’s going to be Google, it’s going to be Facebook – there are going to be criteria set by the regulator that will clearly identify who are in an imbalanced situation and require them to sit down with news organisations and get into a deal.

“And if they don’t get into a deal, then they will go to mediation. And if they don’t get to a deal then, they’re going to the final step, which is final arbitration, which forces a conclusion.”

Some publishers spoken to by Press Gazette suggest that these strict criteria might open the door for other technology companies to be impacted by the Online News Act.

Canada will be ‘more transparent’

One criticism of Australia’s code is that it has led to Google and Meta, the owner of Facebook, striking a series of deals with publishers that are confidential, with terms and payment amounts kept secret from the public.

Asked by Press Gazette on Wednesday whether Canada would seek to introduce more transparency with its law, Rodriguez said: “There’s a balance here… there is, first of all, commercial sensitivity, of course, things that you cannot necessarily divulge publicly. There is also the independence of the press that you have to respect.

“But at the same time, we want [as much] transparency as possible. I think one of the things we want to do differently from Australia is to be more transparent in a few ways.

“For example, in Australia, the finance minister has a final say on who is in an imbalanced situation as a tech [company]. Here, there are criteria that are totally neutral that will evaluate that.

“We don’t want one politician or another to be making those decisions. So when we say that we’ll be looking at that as a model, we will, but we will adapt it to our own reality and the fact that we want to be probably more transparent than any other system that exists.”

The CBC issue

The inclusion of broadcasters in the Online News Act will likely increase the amount of money that Google and Meta are forced to pay out in Canada.

Press Gazette previously reported that Canadian news publishers expected the law to result in the tech giants paying them up to CA$150m a year. One senior industry source suggested this week that, following closer analysis, that figure is likely to be greater. It will be inflated further by the broadcast media.

The inclusion of broadcasters appears to suggest that CBC, Canada’s state-owned media company, would be covered by the Online News Act.

This would likely be a controversial issue for Canada’s commercial media companies, many of which might argue that CBC already receives enough public funding.

“This would be a divisive issue,” said a senior source at one major publisher. “If payments from Google and Facebook are based on a percentage of newsroom costs, CBC has the largest newsroom in Canada and therefore, on that basis, would get the most money.”

Google’s response

Wednesday’s digital conference was hosted by a think-tank called Canada 2020, which lists Google among its supporters.

After Rodriguez’s appearance, and a further session featuring news companies, Richard Gingras, Google’s VP for news, made an appearance and was asked about Canada’s plans.

Gingras did not dismiss Rodriguez’s proposals, but did criticise the Australian model, which he claimed “certainly created risks to the open internet in terms of breaking the core principle of free linking between sites”.

On the situation in Canada, Gingras added: “We think it’s important that regulation not enable undue government influence in the news industry itself. And I think most folks, even in the news industry, would strongly agree with that.

“We’ve had very good conversations. We’ll continue  to work as constructively as we can to come up with what we think can be world-leading internet policy, which is thoughtful with regard to the principles that I just mentioned.”

In the lead-up to Australia’s legislation being passed, Google threatened to withdraw its search engine from the country, while Meta briefly barred news content from Facebook.

Asked whether Google could react similarly in Canada, Gingras said: “I don’t want to engage in that kind of theoretical speculation.”

Earlier in the conference, Rodriguez said that one of the main challenges he faced in implementing new regulations was that Google and Meta “don’t want this”.

In Australia, Google and Meta eventually dropped their threats to leave the country.

One senior Canadian news industry source expressed concern that, in his country, the tech giants may feel less political pressure to stand down and accept regulations. In Australia, Rupert Murdoch – a media mogul with a global empire – was part of the equation.

“There’s no Murdoch equivalent here, so Google and Facebook may turn around and say, we don’t feel the same pressure here,” the source said. “So I’d be wary of the comparison between Australia and Canada.”

Photo credit: Reuters/Blair Gable

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