FRIENDS Standing Up For Canadian Voices

FRIENDS — Who We Are & What We Do We are a citizens group that stands up for Canadian voices on air and online. Our Key Issues FRIENDS Our Advocacy Page 1 We can make sure CBC/Radio-Canada is truly public, with fewer ads, more news, and more independence. A truly public CBC We can level the playing field so more money flows back into Canada to invest in our great Canadian stories. T elling our own stories We need credible Canadian journalism. Democracy depends on it. We can protect it. Strong and credible journalism Hate, death threats, and violence have no place in traditional or social media. Canadian values in Canadian media

FRIENDS Bill C-18 Online News Act Page 2Proposed amendments to and comments on Bill C-18 FRIENDS strongly supports Bill C-18 and we are very eager to see it implemented. As with any proposed new legislation, especially one as novel as Bill C-18, Parliamentarians play a key role in providing considered input as to improvements. With that in mind, this document sets out two amendment proposals along with our comments on the CBC’s inclusion in the bill. 1.

Transparency The Online News Act is critical to the survival of Canadian news, but there are real concerns that the bill may result in online platforms having undue influence over the journalistic and editorial independence of news outlets. Basic public knowledge of which platforms compensate which news platforms, to what extent and in what way, is the best safeguard to prevent such inappropriate influence. That is why FRIENDS submitted an amendment to the Standing Committee on Canadian Heritage (CHPC) that called for public disclosure of agreements between online platforms and news outlets.

Moved by NDP MP , Peter Julian, the amendment was rejected by the CHPC out of concerns that such agreements constitute “private information between two private organizations”.1 FRIENDS remains committed to the principle that if news organizations benefit from Bill C-18, it is entirely reasonable for a condition of that benefit to be disclosure of basic details of agreements. Moreover, maximizing disclosure2 or the “public’s right to know” is a fundamental presumption of administrative law, for which the Online News Act should be no exception.

Such a presumption exists under both the Broadcasting Act and the T elecommunications Act – where information currently submitted to the CRTC is prima facie required to be made public, subject to confidentiality concerns – not the other way around.

Section 38 of the T elecommunications Act states: Subject to

section 39 [confidential information], the Commission shall make available for public inspection any information submitted to the Commission in the course of proceedings before it. A similar provision in the Broadcasting Act places the same onus on disclosure in broadcasting matters. S. 30 of the CRTC Rules of Practice and Procedure states: In broadcasting matters, the Commission must make available for public inspection any information submitted to the Commission in the course of proceedings before it to the extent that the information is not designated as confidential.

While there may not always be “proceedings” under the Online News Act in the same way there are in broadcasting and telecommunications, there will be determinations made by, or under the authority of, the Commission. Those determinations will either establish or foster agreements between online platforms and news outlets. The public interest in information about the details of such agreements is no less important, if not more important, than disclosure on telecommunications tariffs and fees or revenues from broadcasting affiliation agreements. 1 Per Mr.

Chris Bittle, at 9:03 am at committee meeting #60 of the Standing Committee on Canadian Heritage: https:/ /www.ourcommons.ca/DocumentViewer/en/44-1/CHPC/meeting-60/evidence 2 The most often cited case in Canada on the duty of disclosure is R v Stinchcombe, [1991] 3 S.C.R. 326, a landmark Supreme Court of Canada decision on the disclosure of evidence in a criminal trial, where the Court found that the Crown had a duty to provide the defence with all evidence that could possibly be relevant to the case.

In respect of administrative tribunals, the rules of natural justice and procedural fairness have long required a certain level of disclosure. Since Stinchcombe, however, there is been a heightened bias towards full disclosure.

FRIENDS Bill C-18 Online News Act Page 3Y et, in its current form, the Online News Act establishes only the following minimal disclosure obligations: (

a) The combined effect of

section 29(1) and

section 20 of the bill requires an eligible news business to be publicly listed in order to initiate the bargaining process under the Act (i.e. resulting in a “covered agreement”),3 but the names of news outlets that have entered into agreements without using the bargaining process in the Act (i.e. “non covered agreements”, need not be made public. (

b) Section 32 requires that if a group of eligible news businesses enter into an agreement with an operator as a result of bargaining or mediation sessions under the bargaining process, that agreement must be filed with the CRTC. There are no corresponding filing requirements for covered and/or non-covered agreements entered into by individual news businesses. (

c) Sections 53 and 58(1) give the CRTC ample discretionary power to collect information but there are no requirements for the CRTC to actually publish information on the content of the deals between news businesses and platforms, whether they be covered or non-covered agreements. By contrast, rather than containing such a presumption in favour of disclosure of information, Bill C-18 merely states that “the Commission may disclose it or require its disclosure.”4 With the above in mind, FRIENDS submits the following revised three-part amendment on transparency for the Senate’s consideration: (

A) Delete “An eligible news business is only included on the list if it gives its consent.” from subsection 29(1) of the Act. (

B) Add the following immediately after

section 32 of the Act: Filing of Agreements 32. 1 An eligible news business shall file with the Commission any agreement with operators respecting news content that is primarily made available for the Canadian news marketplace within 30 days of the conclusion of the agreement or from the date of an arbitration panel’s decision. (

C) Add the following subsection 58(6) to the Act: Public disclosure (6) the Commission must make available for public inspection any information submitted to the Commission by an operator, eligible news business or group of eligible news businesses to the extent that the information is not designated as confidential. (

A) ensures that the public can be aware of the identity of all news businesses that benefit directly or indirectly, or could benefit directly or indirectly, from the compensation regime established by the bill. (

B) would expressly mandate the filing of all relevant agreements, not just the filing of select “covered” agreements.5 Pursuant to the regime set out in

section 11 of Bill C-18, non-covered 3 In this respect,

section 20 supersedes the qualification enunciated in subsection 29(1) of the Bill which requires the Commission to maintain and publish a list of eligible news businesses, but that “An eligible news business is only included on the list if it gives its consent.” 4 S. 55(4) & (5). 5 We note that the Online News Act currently only expressly requires groups of news outlets to file covered agreements pursuant to

section 32(1); requiring individual news outlets to file covered and non-covered agreements would be a reasonable condition of requesting and obtaining “eligible” designation under

section 27(1).

agreements are subject to the oversight of the Commission. They fall under the “exemption” route for news compensation under the Act, and thus the Commission would be reasonably expected to require information about them to establish whether exemption conditions set out at

section 11 are met.6 (

C) would ensure that, as is the case with broadcasting and telecommunications, and subject to valid confidentiality concerns, agreements and other information filed by operators and news businesses would be publicly disclosed. The CRTC has a long history of exercising its discretion of assessing commercial agreements between private organizations to make determinations as to what should remain confidential and what should be disclosed in the name of public interest.

In so doing, the Commission weighs the competitive harm of disclosure against the public interest, sometimes choosing to disclose redacted agreements, sometimes aggregate financial details. This is precisely the process that should take place in respect of public disclosure of agreements between news businesses and platforms. We note that this is also consistent with the current discretionary CRTC power to request information and designate material as confidential pursuant to sections 53 and 55(1) of Bill C-18.

In combination, these amendments acknowledge the CRTC’s need to assess confidentiality, but nevertheless make it clear that when it comes to the public interest, the default should be filing and disclosure of information, not privacy. 2. Timing of the Bargaining Process A primary purpose of the bill is to address the massive inequality of bargaining power between news outlets and online platforms. As initially drafted, the bill failed to establish objective timelines to ensure that much more powerful and heavily resourced online platforms were not able to circumvent or delay the bargaining process.

Amongst other things, it left the CRTC with the discretion to determine a “reasonable time period” before final offer arbitration could be initiated. While this concern was addressed by the CHPC, the time frames the committee adopted would still allow bargaining (negotiations and mediation) to be unnecessarily drawn out. As currently drafted, the final offer arbitration process cannot be triggered until over seven months in the bargaining process have elapsed.

This remains far too long and fails to ensure news compensation flows as quickly as possible.7 We therefore support the approach initially proposed by News Media Canada, with respect to

section 19, with some slight modifications (changes from current wording of the bill are underlined): S. 19(1) The bargaining process consists of: (

a) negotiation or bargaining sessions over a period of 45 90 days, the start of which can be triggered by a request from either party; 6 In effect, this part of our proposed amendment turns the current discretionary powers to require filing of agreements (encompassed by sections 53 and 58(1), noted in footnote 3, above) into a mandatory one. 7 We note in this regard that the Australian Code established a three-month deadline for news bargaining before arbitration can be triggered. (Parliament of the Commonwealth of Australia, Senate, Revised Explanatory Memorandum, clause 1. 19, available here.) This is consistent with a requirement recently imposed on Rogers that if an affiliation agreement is not concluded within 90 days of the initiation of a negotiation with an independent programming service or services, the matter will be automatically referred to the Commission for dispute resolution. (https:/ /crtc.gc.ca/eng/archive/2022/2022-76.htm at para 139.) FRIENDS Bill C-18 Online News Act Page 4

(

b) if the parties are unable, within the negotiation or bargaining period, to reach an agreement, mediation sessions over a period of 45 120 days, beginning on the day after the end of the negotiation or bargaining period; and (

c) if the parties are unable, within the mediation period, to reach an agreement and at least one of the parties wishes to initiate arbitration, final offer arbitration for a period of 45 days, beginning on the day after the end of the mediation period. S. 19. 1 No later than five (5) days prior to the end of the negotiation or bargaining sessions set out in 19(1)(a), the parties shall agree on a mediator. If the parties cannot agree on a mediator, the Commission shall appoint one no later than the last day of the negotiation or bargaining sessions. 3.

CBC CBC/Radio-Canada remains a significant source of trusted news and information that Canadians count on. As such, taxpayers have a legitimate interest in ensuring its value is recognized and compensated under the Act so that revenues generated from this regulatory regime can be reinvested, particularly in CBC/Radio-Canada’s regional and local news content. That is why FRIENDS was very pleased to see that the revised version of the bill removed language that could have circumscribed CBC/Radio-Canada’s ability to avail itself of the compensation regime.

Giving the Governor in Council powers to establish additional requirements on the CBC not otherwise specified in the Act, would have conferred on Cabinet a direct ability to apply specific conditions related to revenues earned by CBC, something it does not currently have with respect to CBC’s parliamentary appropriation or other revenue sources. T o the best of FRIENDS’ knowledge and understanding, no explanations were ever forthcoming from government on why such a power was necessary, particularly when it is the arms-length CRTC that is currently, and appropriately, so empowered.

For this reason, we were very pleased to see that the CHPC approved the removal of this language, and we would encourage the Senate to uphold this change and ensure that CBC/Radio-Canada has the full and unfettered access to the Online News Act. For further discussion, please contact: Marla Boltman, Executive Director marla@friends.ca FRIENDS Bill C-18 Online News Act Page 5