By Ahmad Hathout
The CRTC wants to know whether news publishers that fail to strike a deal with online platforms to host their content should be required to immediately use CRTC staff for mediation, rather than an external third party.
The concern from the regulator – which launched the consultation period Wednesday on the implementation of the Online News Act – is that much of the allotted 120-day mediation period could be consumed by a search and then agreement on that third party mediator, notwithstanding the cost to smaller news businesses.
“Given that Commission staff already offers mediation services to resolve certain broadcasting and telecommunications disputes, the Commission is of the preliminary view that mediation under the Online News Act should be conducted by Commission staff,” the commission said.
It is asking whether parties agree and, if not, what the alternative should be and what deadline should be set for agreeing on the mediator.
If commission staff cannot help news publishers and the platforms strike a deal, then a 45-day final offer arbitration process is commenced in which the regulator will select one of the two pricing offers for hosting content.
But there’s a first stage in the process, called the 90-day bargaining period. That’s when the commission hopes deals can be struck. If not, the parties will immediately start the mediation process.
The CRTC holds several preliminary views in its launch Wednesday, primarily related to whether more transparency should be required during these stages of the process.
For the 90-day bargaining period, the regulator said it should be notified as part of a written package of information when news businesses intend to initiate the bargaining process. That package should include information including the name of the news group’s representative and the businesses in that group; the date set for the start of negotiations; and a proposed schedule of those bargaining activities, which includes initial proposals to be shared between parties, responses and counteroffers to those proposals, and responses to those counteroffers.
If parties don’t agree, the regulator is asking them to provide an alternative and what, if any, deadline should be established for parties to agree on a bargaining schedule.
For the 120-day mediation period, the regulator said it should be notified within 24 hours after the final day of the bargaining period if negotiations failed. If parties do not believe that should be the case, the CRTC is asking them to provide an alternative.
If talks fail after the mediation period, the CRTC said it should be notified within 24 hours after the final day of the 120-day period if that’s the case. And if the parties don’t agree on that, then they should propose an alternative.
The CRTC also believes that it does not require a separate code of conduct for arbitrators for the legislation. If parties agree, it is asking what codes of conduct would be considered sufficient; if they disagree, what should a separate code of conduct look like?
Other items of inquiry include what actions the commission should take to ensure indigenous arbitrators are included in the roster of arbitrators and how that roster can reflect linguistic, racial and geographic diversity; how the commission should get involved to assist parties dealing with non-monetary issues; and how it should provide guidance on undue preference, disadvantage and discrimination issues.
Comments are due by April 12.
In December, Canadian Heritage published the final rules on the legislation that intends to assist news businesses struggling financially as Google and Facebook continue to dominate the digital advertising space.
Heritage stipulated that the CRTC must be notified within 180 days of those rules being final if an online platform is subject to the law, which are those with baseline total global revenues of $1 billion in a calendar year, operate in a search engine or social media market and have 20 million or more Canadian average monthly unique visitors or average monthly active users to compensate news publishers if they intend to host their content on their sites.
News businesses will have 60 days to respond to platforms’ open call to be included in a list to either negotiation with or seek an exemption — the latter can be negotiated on the basis that the platform feels a collective or collectives capture enough diverse news businesses to satisfy the objective. The news organizations that want a piece will then need to find a collective representative to hammer out a deal with the platforms.
Compensation must be comparable for news businesses that are similar and the agreements must benefit a swath of businesses, including independent and indigenous and official language minority communities. News organizations must have at least two full-time employees and freelancers are not eligible.
As such, the agreements must include a “commitment to use a majority of monetary compensation to support the production of local, regional, and national news content,” according to Heritage, adding platforms must not take action against a publisher because of a news decision to ensure journalistic independence.
The rules also capped compensation for broadcasters and CBC/Radio-Canada at 30 and 7 per cent, respectively.
The final rules came after Google committed to providing $100 million a year toward a news fund to assist.
Facebook has declined to provide news in Canada in protest of the legislation.
