By Konrad von Finckenstein, pictured above, former CRTC chairman from 2007 to 2012
Bill C-18 was passed by the House of Commons and is now in the Senate. Except for a few minor changes, it was passed as originally presented.
In the interim a new chair of the CRTC was appointed. The congratulatory appointment letter of Ministers Pablo Rodriguez and Francois-Philippe Champagne (in fact, a thinly disguised mandate letter) states, inter alia:
“Unfortunately, our sense is that public confidence and trust in the CRTC has waned in recent years. Over the course of our mandates, we have spoken and engaged with Canadians, parliamentarians, stakeholders, academics, and civil society on their experiences with, and perceptions of, the CRTC. While there is broad and strong support for an independent and effective CRTC, we consistently heard that the organization falls short in three areas:
timeliness of decision making;
accessibility of CRTC processes to the public, non-corporate interest groups, and civil society;
openness and transparency.
(Only the first area is addressed in this commentary.)
The government hopes to pass the bill quickly and see it implemented shortly thereafter. The letter makes the point about timeliness. The CRTC will be challenged to do so, given the immense latitude of the powers granted to it. To a large extent, the Act delegates legislative powers to the CRTC. The CRTC, being a court of record, has to follow an evidence-based decision making process. If the government were to legislate parameters on the breadth on the discretion given to the CRTC, the work of the CRTC could be speeded up considerably.
The Senate could contribute markedly to the speed of CRTC decision making by making changes in the following areas:
Identifying DNIs
The digital news intermediaries to whom the Act applies are identified in s. 6:
“This Act applies in respect of a digital news intermediary if, having regard to the following factors, there is a significant bargaining power imbalance between its operator and news businesses:
(a) the size of the intermediary or the operator;
(b) whether the market for the intermediary gives the operator a strategic advantage over news businesses; and
(c) whether the intermediary occupies a prominent market position.”
Size, strategic advantage, prominent market position are all relative terms. It will take lengthy CRTC hearings to decide to whom the Act applies. A single objective, threshold, data point in the legislation, such as net revenue in Canada or number of Canadian visitors to its site would be very helpful and would allow the CRTC to quickly determine to whom this Act applies and who should be exempted. Without such objective data there will be endless views presented to the CRTC regarding application and exemption.
Groups of EBNs
The Act provides that the CRTC must designate a news business as eligible if it meets the definition set out in the Act. An ENB or a group of ENBs may initiate a bargaining process with a DNI. While any group of ENBs are specifically exempted from s. 45 and s. 90 of the Competition Act, the Act is silent on how these groups are formed and the nature of their internal governing processes. The bargaining process envisaged in the Act will implicate numerous and varied ENBs. The ENBs can act singly or in groups. The supervision of the bargaining process by the CRTC may prove onerous, difficult and time consuming. Accordingly, the Bill should be amended to authorize the CRTC to designate classes of groups of ENBs with qualifying criteria for each class of group. Without such an amendment, the CRTC is likely to spend an inordinate amount of time ensuring the proper functioning of the bargaining process.
Subject of negotiations
The Act is very vague on what the subject of the negotiations should comprise. Section 19(2) merely provides:
“(2) The bargaining process is limited to matters related to the making available, by the digital news intermediary in question, of news content produced by a news outlet that is identified under section 30 as a subject of the bargaining process and, if an application is made under subsection 31(1), determined by the Commission to be a subject of the bargaining process.
(3) Any final offer arbitration under the bargaining process is limited to monetary disputes.”
The ability to freely link is foundational to the open web. It’s what enables journalists to link to others’ content and quote without obtaining permission. Everyone can link to websites, and no one is required to be paid for the privilege and linking attracts no copyright charges.
Although critics have claimed Bill c-18 amounts to a link tax, what really is being negotiated is not the act of linking but the value of the data obtained by DNIs when linking with ENBs, regardless of whether the linking is at the DNIs’ initiative or the EBNs’. The negotiations are about the rent DNIs should pay for using the data obtained through linking.
It would be exceedingly helpful if the Act spelled this concept out. This would guide both the CRTC and the arbitrators when carrying out their duties under the Act. Without such clarification, a lot of time and effort will be wasted in determining or litigating what is meant by “matters related to the making available, by the digital news intermediary in question, of news content produced by a news outlet”.
Refining discrimination, preference and disadvantage provisions
Sections 51 and 52 of the Bill provides that:
“51. In the course of making available news content that is produced primarily for the Canadian news marketplace by news outlets operated by eligible news businesses, the operator of a digital news intermediary must not act in any way that
(a) unjustly discriminates against the business;
(b) gives undue or unreasonable preference to any individual or entity, including itself; or
(c) subjects the business to an undue or unreasonable disadvantage.
52. (1) An eligible news business or group of eligible news businesses may make a complaint to the Commission if the business or group has reasonable grounds to believe that an operator has, in relation to the business or member of the group, contravened section 51.
(2) In determining whether an operator has contravened section 51, the Commission may take into account any factor it considers appropriate, but it must take into account whether the conduct in question is
- in the normal course of business for the operator;
- retaliatory in nature; or
(c) consistent with the purposes of this Act.”
In addition, s.68 has special provisions regarding a DNI alleged to have engaged in behaviour prohibited by s. 51 .
“68. In a proceeding in respect of a violation in respect of a contravention of section 51, the burden of establishing that any discrimination is not unjust or that any preference or disadvantage is not undue or unreasonable is on the individual or entity that is believed to have contravened that section.”
DNIs make millions of ranking decisions each day, using artificial intelligence. DNIs also routinely obtain authoritative information from non-news sources. Each of these decisions could be subject to potential complaint by an ENB that alleges unjust discrimination, unreasonable preference or undue disadvantage as a result of the ranking of its information. Such complaints could clog up the CRTC. Given that the onus of proof lies with the DNI, there is a great likelihood that many of the complaints will be successful and could result in hefty administrative monetary penalties (AMP) imposed by the CRTC. In their present form, these provisions represent a show stopper for DNIs.
Applying a system of review of single decisions to a process driven by AI that makes millions of decisions each day just does not make sense. The entire part of the bill dealing with undue preference has to be rethought and redrafted to fit the realities of the Internet.
The CRTC has neither the resources nor the time to examine artificial intelligence systems to determine if they violate s. 51.
The CRTC should be given authority to set up specialized panels of experts to examine complaints regarding an alleged violation of s. 51. If a panel finds that the violation was caused by a negligent or deliberate programming of the artificial intelligence employed, the CRTC should impose an AMP. If there was no negligent design or deliberately programmed discrimination, unreasonable preference or undue advantage, no AMP should be imposed, but the CRTC could issue corrective orders.
In summary, if the goal is to have the CRTC make faster decisions then greater precision and more detail in legislation will greatly help. Obviously, there are many changes that could be made to other pieces of legislation, especially Bill C-11. However, these matters are not before the Senate at this time but C-18 is. Should the Senate adopt the four changes outlined above, it will save a lot of time for the CRTC and should lead to a faster decision making process.
Cartt accepts commentary from informed observers of the telecommunications and broadcasting industry. The views reflected in these pieces do not necessarily reflect the views of Cartt. Pieces for consideration should be sent to editorial@cartt.ca.
