ILLUSTRATION: THE GLOBE AND MAIL
So let’s just review the bidding. Bill C-18, the Online News Act, is not even in effect yet, and already it has prompted Facebook to stop linking to Canadian news articles; Google looks certain to follow.
The government had hoped to force the platforms to pay the Canadian news media for linking to their content or, in the shamelessly Orwellian language of the publishers’ lobby, “stealing” it: as if sending millions of readers our way every day, for free, was somehow a form of theft.
Instead they have complied with the law by ceasing to link to us – rather than, as the government evidently intended, to go on providing us with free advertising but to pay us a fee for doing so.
Ostensibly the amount of the fee was to be left to negotiations between the platforms and the publishers. But if it was not already evident what a sham this was – the negotiations were to be backstopped by that most impartial of arbiters, the Canadian Radio-television and Telecommunications Commission – it became clear with the release of regulations setting a minimum fee of 4 per cent of revenues for linking. Minimum, mind you: There is a floor, but no ceiling.
Surprise, surprise: The platforms refuse to play. Not only have they declined to enter into the shotgun deals the government had prepared for them, but they have begun cancelling their existing deals with Canadian media outlets – the ones in which they willingly pay for content they actually use.
The assumption on which the government/media strategy was based was that the platforms needed us more than we needed them: that without news stories to link to the platforms’ readers would have nothing to natter about. That faith has turned out to be as fantastically misplaced as everything else about the bill.
In fact Facebook has experienced no loss of traffic, while the newspaper proprietors that previously ordered their papers to publish endless column inches complaining that FacebookGoogle were stealing our content are complaining at the sudden loss of readers now that the alleged theft has ceased.
The law, in short, is an utter fiasco, a policy catastrophe on a grand scale. The government bet it could bend the platforms to its will, and now finds its bluff called. If that were all – if the bill had not merely failed to deliver, but backfired on the publishers behind it – it might be cause for some grim satisfaction.
But the government-orchestrated ban on links has not just hurt the moribund, mismanaged legacy media. It has caused immeasurable damage to the dozens of nimble little startups that populate this country’s thriving new media ecosystem. In its desperate attempt to prop up the media’s past, the government has instead conspired to destroy its future. Indeed, I have heard it suggested that was the point.
And it doesn’t end there. The attempt to shake down Facebook and Google having failed, the publishers have turned their sights back on the government. The “temporary” bailout they received in the 2019 budget would, if the publishers have their way, be made permanent. Indeed, even if the link tax can somehow be made to stick, the publishers want the bailout to continue. By some calculations the combined effect would be to leave the taxpayer footing the bill for fully 70 per cent of the publishers’ costs.
But don’t worry: In any future election campaign in which one party was promising to take away the publishers’ lolly while another was promising to keep it, rest assured the media would show the same scrupulous neutrality in their coverage that they have to date. Which I’m guessing means no party will campaign against it.
Meantime the government and the publishers have launched an advertising boycott of Facebook, and encouraged others to boycott it as well. News of the campaign does not appear to have reached, for example, the federal Liberal Party, which continues to advertise on it as before. And why not? After all, the newspapers have never let their furious opposition to the platforms linking to their content stop them from posting links to the platforms themselves.
By this point you are probably thinking: Nothing could top this. No legislation could possibly be more misconceived, more outdated, more frankly delusional about the changing media environment we are now in or Canada’s place in it. But that is where you are wrong.
Step this way, Bill C-11 – the Online Streaming Act! Where C-18 merely imposes a tax on links with little justification and less possibility of enforcement, C-11 purports to apply Canadian broadcast regulations to the entire internet: not only in Canada, but around the world.
The stated reason: to promote Canadian content. The stated target: once again, the big online platforms, this time not Facebook and Google so much as Netflix and Amazon. But Canadian content is not in need of promotion – the internet is awash with it, including on the major platforms, instantly available to anyone who can type “Canada” into a search field.
And, as becomes more evident by the day, the bill will not just apply to the major platforms, or to the big media companies that supply them with content, but to the legions of smaller podcasters and YouTubers who want nothing from government but to be left alone to conquer the world, but who will now find themselves caught in the legislation’s thicket of regulatory nationalism.
Once again, the government is propping up the past – the beneficiaries of the old, failed and mercifully crumbling system of Cancon that has made the Canadian cultural industries the havens for mediocrity they are today – at the expense of the future.
For all the government’s intermittent assurances that the bill would not apply to smaller providers or user-generated content, the CRTC – yes, it would oversee this legislation too, as if it did not have too much on its plate already – seems bent on contradicting it. Thus it was no surprise to see the regulator, in its first directive under the act, decree that it would indeed apply to podcasters. While the $10-million revenue floor might seem to exclude the small fish, it also applies to the platforms that carry them. Whatever is demanded of the platforms, you may be sure, will be demanded of their clients. And whatever is imposed on them necessarily affects their audience.
The CRTC's latest regulatory decision is sending a chill through the Canadian podcast world
The extraordinary thing about this legislation, beyond its overreach, beyond its intrusiveness, beyond its unworkability, is how unnecessary it is. The old broadcast regulations were framed in the days when there were only a handful of networks, all of them funded through advertising – a necessity, in broadcasting’s technological infancy, when subscription and pay-per-view models were impossible.
The combination of spectrum scarcity and the preference of advertisers for the largest possible audience tended to narrow the range of programming available, leaving less room for minority tastes – including Canadian content. So there was a case for regulation, to recreate the kind of broad diversity of offerings available in most markets.
The arrival of the internet, with its limitless supply of every conceivable type of content, delivered from thousands – no, millions – of audio and visual sources around the world and, crucially, fundable by its audience, would have signalled to any normal observer: Right, time to junk the regulations, and the regulator. Only in Canada did it occur to anyone to say: This calls for regulating the internet like conventional broadcasting, circa 1968.
And make no mistake: It is not only the strictures of Cancon, with its complex formulas for calculating the Canadianness of a work of art and its even more obtuse rationale – why should it be the object of policy to force Canadians to watch Canadian programs, even supposing you could? – that would apply in this new/old regime. The CRTC has other mandates – diversity, propriety and so forth – which it has not hesitated to enforce in the past.
Which means, for the most part, that it does not need to: Broadcasters in this country have a long history of self-censorship, whether through the “independent” Canadian Broadcast Standards Council or just in the privacy of their own head offices. And now we can look forward to the same online.
Well, you’re saying. That’s a pretty deadly combination: C-18 and C-11. A tax on linking, the CRTC vetting podcasts for poutine references: With these two bills, Canada will have the most insanely heavily regulated internet in the world. Thank God that’s the end of it.
Ah, but the government has saved the best for last. Still in the works is yet a third bill: the Online Harms Act. This at least has some legitimate underlying policy rationale – unlike, say, bailing out the Canadian news media or forcing more Cancon down the intertubes. There is a lot of objectively harmful stuff online, of a kind the most ardent free speecher would agree should not be legal: child pornography, for example. And while existing laws ought to be adequate enough to address most of it, it’s not unreasonable to suppose these might need to be updated to take account of new technological developments.
But is the gang that gave us C-11 and C-18 to be trusted with such a delicate task? An early draft of the bill, for example, would not only have allowed the authorities to order the deletion of offending material, but would have allowed it to be suppressed even before it appeared. Anyone, that is, who “reasonably fears they could be a target” of “hate propaganda” would have been able to apply to a judge to prevent its publication.
No. The odds of the government getting this bill right, after so supremely bollixing the first two, must be rated as slim to none. Better to scrap the lot and start again. Or better yet, don’t even start.