Canada imitates Australia’s news law, but to what end?

Two years ago this month, Australia passed a law called the News Media and Digital Platforms Mandatory Bargaining Code, which, as the name suggested, forced digital platforms like Facebook and Google to negotiate deals to pay the news media for the latter’s content. If they failed to do so, the Australian government would reserve the right to impose deals between the parties. Before the law was passed, Google warned users that the legislation could affect their ability to search; meanwhile, Facebook tried to sway public opinion against the law by promising to block all news content from its platform in Australia. When the law passed, Facebook did precisely that. But after amendments made the law less stringent, the platform removed the ban. Eventually, both Facebook and Google cut deals with multiple news companies.

Fast forward two years, and a similar scenario is playing out in Canada. Encouraged by the sums of money that Australian media companies received as a result of the legislation there—about a hundred and fifty million Australian dollars, according to a report in CJR by Bill Grueskin, a professor at Columbia Journalism School—the Canadian government moved to implement its own version of such a law: Bill C-18, the Online News Act, which has been through the House of Commons and is now making its way through the Senate. Last month, Google removed news from Canadian search results in what the company described as “tests.” Last week, Facebook said that it will cut off access to news in Canada if the law is passed in its present form. Rinse, repeat. 

Last week, Sabrina Geremia, the head of Google’s Canadian arm, and Jason Kee, its public policy manager, testified before a Canadian government committee hearing into Bill C-18. (The committee asked other Google executives to appear, including the CEO, Sundar Pichai, but they declined). Kee claimed that the bill would incentivize “clickbait” journalism and favor larger news companies over smaller publishers. Google’s opposition—or, at least, its tactics in trying to remove news from search results in Canada—may have backfired: News Media Canada, a lobby group representing digital and print publishers, said in a statement that Google’s move to cut off Canadians’ access to news was “heavy-handed” and that it “underscores that there is a significant power imbalance between publishers and platforms,” thus proving a need for regulation.

But Kee’s argument against the bill did not materialize from nowhere In Australia, one of the criticisms of the Media Bargaining Code has been that it primarily benefits large publishers, not least the Murdoch-owned News Corp., which controls a significant proportion of the country’s media. Similar concerns have been aired in Canada (and not only by Google executives) since the bulk of that country’s newspapers are owned by Postmedia, which is controlled by US hedge funds including Chatham Asset Management. (Chatham acquired the US newspaper chain McClatchy in 2020). Some critics of the Canadian law have also argued that it could steer funds to the national public Canadian Broadcasting Corporation, or CBC, which many private media companies have said engages in unfair competition by offering free news subsidized by the government.

In October, a report published by Canada’s Parliamentary Budget Office, an independent body that produces economic analysis for the government, estimated that Bill C-18 could result in more than three hundred million Canadian dollars in payments to Canadian news companies within the first year. The report also noted, however, that close to three quarters of that sum could go to the CBC and other broadcasters such as Rogers and Bell—two large telecommunications and cable companies that also have significant entertainment and media holdings—rather than to small newspapers and other independent outlets. Some critics argue that funds could even go to broadcasters that don’t produce news at all.

In November, Gabby Miller, of Columbia’s Tow Center for Digital Journalism, wrote for CJR about Bill C-18 and noted that Rod Sims, a former chair of the Australian Competition and Consumer Commission, has pushed back against the idea that the Media Bargaining Code in his country primarily benefited large publishers. Sims has said that nearly all eligible media businesses had done deals with Google, while Facebook had entered licensing agreements with publishers that employ the vast majority of Australian journalists. He also pointed out that Country Press Australia, a group of a hundred and sixty small regional publications, received “possibly the highest payment per journalist employed.”

Miller also reported, however, that Jeanette Ageson, representing the Independent Online News Publishers of Canada, said in a committee hearing last year in Ottawa that, “while we appreciate the assurances” that smaller publishers in Australia are happy with their deals, “we see nothing in Bill C-18 that guarantees us the tools we need to achieve and independently verify an equitable outcome.” As written, the Canadian bill only requires that deal terms be disclosed to the government, not the public. The same has been true in Australia: in his analysis of that law for CJR, Grueskin wrote that details of deals reached are “guarded like they’re nuclear launch codes. If you want to learn whether newsrooms are spending that money to bolster journalism, rather than pad executives’ salaries, you’re out of luck.”

Michael Geist, a professor of internet law at the University of Ottawa, has argued that one of the main problems with the Canadian bill is that it amounts to a tax on links, an argument that has also been made about Australia’s code and similar proposed laws in Europe. The Canadian government has claimed that the law will “compensate journalists when [platforms] use their work,” Geist says—but the platforms don’t “use” the work of news publishers, they merely link to sites where that work appears. Sue Gardner, a visiting professor at McGill University and a former executive director of the Wikimedia Foundation, told a Canadian government hearing in November that instead of forcing platforms to cut deals with publishers, the government should create an independent fund to support journalism.

Paula Simons, a former journalist (and former colleague of mine) turned Canadian senator, meanwhile, has said that Bill C-18 will not save journalism because “it jeopardizes media’s independence. The idea that we can and should force two American tech giants to underwrite the independent news upon which Canadians rely is a logical and ethical fallacy.” Simons argued earlier this year that the bill is “premised on a core proposition [that] the reason print media outlets have lost their revenues is Google and Facebook are somehow stealing their news stories and then monetizing them to sell ads,” which she said isn’t accurate. Simons added that Bill C-18 would mean “creating an even greater economic dependence, and giving Google and Facebook even more power than they already have over what we read and what we see.”

It is this dependence that some journalists are most concerned about. Peter Menzies, a former vice chairman of Canada’s broadcast regulator, the Canadian Radio-television and Telecommunications Commission, told a parliamentary hearing in September that Bill C-18 will “permanently entrench the industry’s dependency not on the loyalty of citizens, readers, viewers, but upon the good graces of politicians and the ability of offshore, quasi-monopoly tech companies to remain profitable.” Menzies added that the law might “keep the wolves from the door of a few legacy companies for a few more years, but it won’t save journalism.” There, too, there are parallels with arguments that have been made in Australia; as Matt Nicholls, editor of the small Cape York Weekly,told Grueskin, “If you need Google funding to prop up your journalism, to keep your journalists employed, that’s not sustainable.” Rinse, repeat.

Note: This was originally published as the daily newsletter for the Columbia Journalism Review, where I am the chief digital writer