Google writes to all Canadian MPs as it steps up campaign against Online News Act

Google has stepped up its campaign against Canada’s Online News Act, insisting that the legislation could “break” its search engine.

Colin McKay, who leads public policy and government relations for Google in Canada, wrote to every MP and senator to express his company’s concerns about the legislation.

He claimed that the bill, known as C-18 in Ottawa, is being “rushed through” parliament, leaving “insufficient opportunity for thoughtful analysis and conversations about how it could impact the Canadian news ecosystem and your constituents”.

Several of the claims in the letter have been made before and dismissed by news industry organisations in Canada and beyond.

Jason Kint, the chief executive of Digital Content Next, a trade association for online publishers in the US, said the letter was a sign that Google is “getting desperate up in Canada”. He likened the move to similar threats and warnings the tech giant made in Australia and Europe ahead of similar legislation in those jurisdictions.

McKay’s letter, seen by Press Gazette and published in full below, seeks to challenge several “misconceptions” surrounding the Online News Act and repeated Google’s claim that it could “break” its search engine. 

Google made similar warnings to Australia ahead of the introduction of its News Media Bargaining Code last year. The tech giant said it might have to remove its search engine from the country. 

Google did not follow through with this threat when the News Media Bargaining Code passed into law last March. Instead, Google and Meta/Facebook struck a series of licensing deals with news publishers thought to be worth more than AU$200m a year.

However, Google says it is significant that it was not been “designated” under Australia’s code and is therefore technically not subject to the law. In his letter to parliamentarians, McKay claimed it is a misconception that the Online News Act “is modelled after Australia and it didn’t break Google or the Internet there”.

He said the Online News Act “goes far beyond the Australian Code, including: no obligation to follow journalistic standards; a general prohibition on ‘undue preference’ that could effectively force platforms to prominently display misinformation; and sweeping changes to copyright law. 

“In addition, while Australia passed a bargaining code, it has not been actually applied to any company, including Google. The unworkable portions of the Australian Code haven’t broken the internet because it hasn’t taken effect, not because it is sound policy or workable legislation.”

McKay said it is misconception that “Google is only raising these concerns because they don’t want to pay”. “We are willing to do more (financially and otherwise) without breaking a product that millions of Canadians have come to rely on and trust,” he wrote.

He proposed as an alternative to the Online News Act a model under which Google would pay into a fund to be distributed between publishers. The news industry has argued against this model, saying it favours a system that facilitates commercial agreements.

McKay also claims the bill would “disproportionately benefit the news industry’s largest players – who lobbied aggressively in favour of Bill C-18 – while local, innovative and diverse news producers will be systematically disadvantaged”.

He said the bill in its current form does not “require eligible news outlets to follow basic journalistic standards or even be based in Canada”. Google is also concerned the Online News Act will give the Canadian Radio-Television and Telecommunications Commission (CRTC), a regulator that would oversee the system, too much power.

Paul Deegan, chief executive of News Media Canada, has previously dismissed many of Google’s concerns about the Online News Act.

In response to McKay’s letter, he said: “We look forward to a robust, fact-based discussion about C-18 with members of parliament at the Heritage committee. This is good legislation that helps level the playing field between publishers and platforms.

“With the prospect of legislation, last year, the platforms negotiated commercial licensing agreements with a very select group of publishers. That created a group of haves and a group of have nots – with big tech picking winners and losers.

“This legislation sets the table, allowing more publishers to conclude licensing deals, so they can reinvest in their newsroom. That’s good news for Canadian journalism and for our democracy.”

News Media Canada last week published the results of a Pollara survey that found 79 per cent of Canadians “agree that web giants should have to share revenue with Canadian media outlets”.

Google’s letter in full

Dear MP,

The House of Commons is currently debating Bill C-18, the Online News Act at second reading and it seems the Bill is likely to be fast-tracked to committee after only two days of debate in the House.

Let me be absolutely clear, Google is in favour of supporting a sustainable future for journalism in Canada. This includes regulation and financial contributions. However, Bill C-18, as drafted, would fundamentally and negatively impact millions of Canadians every day by degrading how people interact with Google products and services. There has got to be a better way.

Canadians expect us to work together on this. Unfortunately, this extraordinarily complex legislation is being rushed through during the busiest time of the year for Parliamentarians, leaving insufficient opportunity for thoughtful analysis and conversations about how it could impact the Canadian news ecosystem and your constituents.

Which is why I write today to address several important misconceptions and make sure you know that our team is available to meet and answer any questions you may have at your earliest convenience. I have included details below.

Access to authoritative news is vital for democracy and core to our mission at Google.  For more than twenty years, we’ve been helping Canadians find and access the relevant and authoritative news content they’re looking for online. This is a responsibility we take very seriously.

I hope that we will have an opportunity to speak with you soon.

– Colin

Misconception: Bill C-18 is modeled after Australia and it didn’t break Google or the Internet there.

Reality: This Bill goes far beyond the Australian Code, including: no obligation to follow journalistic standards; a general prohibition on “undue preference” that could effectively force platforms to prominently display misinformation; and sweeping changes to copyright law.

In addition, while Australia passed a bargaining code, it has not been actually applied to any company, including Google. The unworkable portions of the Australian Code haven’t broken the internet because it hasn’t taken effect, not because it is sound policy or workable legislation.

Today, you can search for information and find relevant websites. Publishers and businesses want to be found by Canadians. If they don’t, they can easily opt out of Search. The Online News Act would change this, requiring companies like Google to pay news businesses simply so that we can help Canadians find what they are looking for – even if the link is posted by the news business itself. It is more extreme than the European version, which allows links and short extracts, and the Australian Code, which would not have expressly stripped us of fair dealing rights had it been applied. This fundamentally breaks the way Search (and the internet) have always worked.

The proposed legislation would require Google to pay news publishers every time we connected you to their websites. It’s like a restaurant owner demanding that taxi drivers pay them for the privilege of delivering diners to their door. Search traffic drives people to news websites. Search brings tremendous value to news publishers who monetize that referral traffic with subscriptions or ads.

Misconception: Bill C-18 will not impact Google’s products and services in any way.

Reality:  As written, this Bill’s “undue preference” language may prohibit features that elevate information from trusted sources (including government information) or reduce low quality information (including from eligible foreign state media outlets).

The breadth of this provision threatens potential liability for any type of ranking or moderation of news content, or any action that might have a negative impact on any outlet, even if that outlet is known to produce propaganda or disinformation. Features that elevate information from trusted sources (including government information) or reduce low quality information (including from eligible foreign state media outlets) might be in this scope, and the enormous penalties in the bill mean that a platform takes an extraordinary financial risk if it carries out these activities in the hope they are later found to be justified. This unintended consequence of the bill will have a tremendous impact on Google Search and how Canadians navigate the web.

Misconception: Bill C-18 only includes organizations with established journalistic standards and would not include non-authoritative news sites.

Reality: The proposed law uses an extremely broad definition for “eligible news businesses” and doesn’t require eligible news outlets to follow basic journalistic standards or even be based in Canada.

The definition is a business that “produces news content that is primarily focused on matters of general interest and reports of current events, including coverage of democratic institutions and processes, and regularly employs two or more journalists in Canada.” This means that any opinion or commentary blog with two or more people in Canada could be eligible to receive funds. It also means that foreign state-owned outlets could be eligible, even if they are known sources of misinformation and propaganda. In other words, the bill would force Google to subsidize outlets that do not adhere to any journalistic standards, creating a regime that allows bad actors and those peddling misinformation to thrive and profit, and funnel money for the sustainability of important local news for Canadian citizens to foreign entities. The Qualified Canadian Journalism Organization designation is already a widely agreed upon and industry accepted criteria  that could be used to define eligible news businesses.

Misconception: Google is only raising these concerns because they don’t want to pay.

Reality:  That is false. We have long supported journalism and we financially contribute to newsrooms in over a 100 communities across Canada via our News licensing program Google News Showcase, and more via the Google News Initiative. We are willing to do more (financially and otherwise) without breaking a product that millions of Canadians have come to rely on and trust.

The Online News Act will make it harder for Canadians to find and access authoritative news by creating a lower standard of journalism and breaking search. This has never been about our unwillingness to contribute, and we would support a solution that ensures the sustainability of the Canadian news marketplace but avoids these unnecessary outcomes.

One idea that has come up consistently in our conversations with academics, journalists, editors, publishers and owners alike, is the notion of a fund, similar to the Canada Media Fund model, that could be there to support a sustainable and innovative future for journalism in this country. This model would essentially make the idea of payment for links or “undue preference” irrelevant, which would eliminate our main concerns with Bill C-18 as currently drafted. A fund would be flexible and forward-looking, could be overseen by eminent third party experts, and by expressly directing payment the administrators could ensure that benefits flow to small, independent, innovative and diverse emerging news publishers.

Misconception: Bill C-18 will support news publishers big and small.

Reality: This Online News Act will disproportionately benefit the news industry’s largest players — who lobbied aggressively in favour of Bill C-18 — while local, innovative and diverse news producers will be systematically disadvantaged in Canada’s media ecosystem.

Smaller Canadian publishers have said that they are concerned about the unequal playing field Bill C-18 will create. The current legislation places the burden on smaller, independent publishers to negotiate their own collective agreements.

Misconception: Bill C-18 is a market-based solution and involves minimal government intervention.

Reality: The bill gives the Canadian Radio-Television and Telecommunications Commission (CRTC) unprecedented, sweeping new powers to regulate every aspect of the Canadian news industry and the internet.

The CRTC would be responsible for determining what is an “eligible news business,” who is a “journalist,” what is “original” news content and what are “strategic” markets for news — decisions far outside its expertise as a broadcast regulator. It would oversee and govern all negotiations between the news publishers and technology companies, including setting mandatory terms, while also resolving any resulting disputes and having the power to issue penalties. The bill would also give the CRTC unprecedented and virtually unlimited authority to demand information from both platforms and news business.

Misconception: Google is exaggerating about the impact of Bill C-18.

Reality: Our analysis of Bill C-18 and that of other experts is based on what is written in the proposed legislation, not what is said by government officials in speeches and interviews.

While the Heritage Ministry has said it wasn’t their intent to prohibit protecting Canadians from misinformation, weaken journalistic standards, or impose a link tax, that’s what the text of the proposed legislation does. Compounding the problem, Canadians can’t be clear on what the bill will actually do or how it will be enforced because it leaves many crucial details to be decided in future regulations by the CRTC.

The Heritage Ministry said that our concerns were “highly exaggerated”. While we wish that were true, Google’s role to guide Canadians to relevant and authoritative information, a role Canadians expect and trust Google to do, cannot be pursued on the hope that unclear language might be corrected or interpreted more wisely at a later date. The stated objective of the bill to support news is too important to not take the time to find a solution that benefits independent local news providers, and that doesn’t break Google Search, the very tool that Canadians rely on to find trusted information about any and all issues.

Photo credit: REUTERS/Peter Power

Email pged@pressgazette.co.uk to point out mistakes, provide story tips or send in a letter for publication on our "Letters Page" blog