Hon. Fabian Manning: Honourable senators, I rise today to speak to Bill C-18, An Act respecting online communications platforms that make news content available to persons in Canada.

When I spoke to this bill at second reading, I began by noting the government’s claims as to the objectives it has for this piece of legislation. The government believes that its bill will address the problems that have been faced by traditional media over the last decade. We heard the minister say that he wants to build a fairer news ecosystem where legacy and traditional media can receive the support they need in order to remain viable. Senator Harder, as the sponsor of the bill, has repeated those same arguments, of course.

Both Senator Harder and the minister have repeated the assertion that, since 2010, about one third of journalism jobs in Canada have disappeared, and Canadian TV stations, radio stations and newspapers have lost around $4.9 billion in revenue. At the same time, they argue that online advertising revenue has grown considerably.

There is no question that the changes that have occurred over the past 15 years or so have had a very serious and negative impact on traditional media in Canada. What is less clear are the reasons for those changes. Nor is it clear that Bill C-18 is, in any way, a remedy for the problem.

When Professor Dwayne Winseck of the School of Journalism and Communications at Carleton University testified before our committee on May 10, he pointed out that the causes for the decline in traditional media are multi-faceted. In response to a question I posed to him at committee, he said:

. . . I do not believe that Facebook and Google caused the crisis of journalism. . . . A decade ago revenue started to fall. . . . The crisis of journalism is multifactorial. It depends on where you want to start. Basically, per capita newspaper circulation begins to decline in the 1980s and 1990s. Revenue peaks around 2005-2006 and then starts to go down afterwards. And why? Because of the global financial crisis. These companies were ill prepared because of consolidation, and they were debt addled exactly as advertising started to plunge and the internet giants began to emerge.

So Professor Winseck emphasized this: Google and Facebook are not the cause of the crisis in journalism.

Yet then Professor Winseck went on to state that he does not believe this bill will do anything to address the monopoly concentration that he argues has occurred over the past decade and a half. Professor Winseck argues that this foundational failure in the bill will harm Canadians by not paying sufficient attention to what he believes should be the equitable distribution of whatever fruits are born out of this legislation to support smaller, upstart news entities that could liven our news ecology. He argues that this failure in the bill is a problem.

Other witnesses took a somewhat different perspective, though they tended to arrive at the same solution when it came to their analysis of the bill. Peter Menzies, a former vice-chair of the CRTC, told our committee on May 2 that “bill C-18 ultimately helps neither those that are struggling to survive nor those looking to enter the market . . . .” Mr. Menzies agreed that there has been tremendous dislocation in the news market in Canada and around the world during the last number of years. He noted that about 473 newspapers have died in Canada, but in his view, new entities have stepped in to take their place. He noted:

Up to 700 websites owned by licensed commercial broadcasters, many of which look very much like an online newspaper, have launched.

He argued that this has occurred without state subsidies: “. . . 216 web-based news and commentary platforms have been launched by innovators and entrepreneurs.” These include many diverse news and commentary platforms.

This is a somewhat different perspective from that held by Professor Winseck, but where these and many other witnesses seemed to have agreed is that Bill C-18 will not solve the problem it has supposedly been drafted to address. Minister Rodriguez has repeated many times that this bill is important to protect the free and independent press, but it seems clear from the witness testimony that we heard at committee that the bill will likely fail in that regard.

First of all, there were serious questions that were raised at committee in relation to who will benefit from this bill. According to testimony from government officials, Bill C-18 is forecast to generate about $215 million for eligible news businesses. The Parliamentary Budget Officer, or PBO, had a somewhat higher estimate of close to $350 million. As the PBO points out, about three quarters of that amount, or about $240 million, will go to the largest broadcasters, with the CBC, Bell Media and Rogers Media being the largest beneficiaries. Whatever remaining sum of money ends up flowing to smaller eligible media and Indigenous news outlets, that amount will have to be spread across the country to multiple news businesses.

Personally, it leaves me to wonder what level of funding will actually end up being available for smaller media in my own province of Newfoundland and Labrador. When we asked that question about likely provincial breakdowns, officials could not tell us. They didn’t have any answers to our questions.

When the bill was reviewed at committee, Senator Carignan proposed a very reasonable amendment to exclude state broadcasters that already receive government subsidies from benefiting from the provisions in Bill C-18. But the majority of senators on the committee rejected that amendment. That means there will be less money for smaller news businesses and for Indigenous news outlets. Evidently, the Liberal government favours that outcome over giving yet more subsidies to state broadcasters.

That is unfortunate because even if we take the most optimistic number from the Parliamentary Budget Officer and then look at the likely per capita share for Newfoundland and Labrador’s smaller news businesses, the amount comes out to less than $2 million — a paltry sum for those news outlets struggling to survive in today’s market.

In the face of this reality, it is scarcely surprising that many witnesses were very skeptical that Bill C-18 will actually be successful in building the fairer news ecosystem that the minister claims to want. The potential of less than $2 million for smaller news businesses in my home province of Newfoundland and Labrador will be the most optimistic scenario.

The minister was absolutely unable to explain, when he appeared at our committee, what will happen if some of the big digital news intermediaries, such as Meta, Google and perhaps others, simply stop linking to news in Canada. Meta witnesses who appeared before our committee were quite clear that they would not participate, while Google witnesses noted that their company has not yet made a determination. The non-participation of just two large platforms would reduce the amount of funding for eligible news businesses by up to 30%.

Senator Simons asked the minister a very direct question on this at committee. She asked what happens if on July 1 the platforms have disengaged from the Canadian news market and have ceased to share Canadian content. A fair reading of the subsequent exchange between the minister and Senator Simons is that the minister simply refused or could not answer the question.

Once again, Senator Carignan proposed an amendment to at least try to address part of this problem by removing hyperlinks as part of the definition of news content. This might have assisted in perhaps keeping platforms, which, after all, are at the heart of the government’s funding model, within the funding regime. But, once again, the majority of senators on our committee — ironically including Senator Simons — said no, but I am encouraged by her speech here today about what will happen when it comes time to vote.

Colleagues, that should worry us all because it leads me to believe the government has no idea what will happen if the bottom drops out of the bill’s funding model.

With the passage of this bill, many small news outlets in this country are on a journey to the unknown — a sad reality indeed. In that sense, the bill is a plunge into darkness, and I fear it is a plunge into darkness in another sense as well.

There is little question that the bill has serious trade implications for Canada. Last year, the Office of the United States Trade Representative, Katherine Tai, issued a press release in which she expressed concern:

. . . about Canada’s proposed unilateral digital service tax and pending legislation in the Canadian Parliament that could impact digital streaming services and online news sharing and discriminate against U.S. businesses.

Earlier this year, the U.S. embassy also stated, “We have concerns it could impact digital streaming services and discriminate against U.S. businesses.”

True to form, the government has responded by saying that it would not be intimidated. Not being intimidated is all well and good when one has a sensible strategy to deal, but based on the witness testimony we heard, it is far from clear that Bill C-18 constitutes such a sensible strategy. In fact, Bill C-18 is creating the very crisis, I believe, which the government now has no strategy to address.

During my critic briefing on this bill, officials were asked what the likely hit will be on Canadian businesses should U.S. initiate trade retaliation. Officials responded that the hit would likely be equivalent to whatever the U.S. believed U.S.-based digital news intermediaries had lost or were losing as a result of Bill C-18. In other words, whether the amount is just over $200 million, as the government forecasts, or whether it is $330 million, as forecast by the PBO, U.S. trade retaliation will potentially wipe out all those gains. Once again, one is left wondering what the end net benefit of this bill will actually end up being.

I have to admit that I was extremely surprised and disappointed as several senators on our committee who profess a great knowledge and understanding of the media world here in Canada — much better than I do — did not do much to address many of the issues and problems that our witnesses raised during our committee meetings.

There are additional concerns with this bill which relate to the implications that this legislation has for journalistic independence. In their brief on Bill C-18, the Internet Society – Canada Chapter issued a warning about the implications that this bill could have for journalistic independence. Their brief stated:

The Online News Act will make news organizations dependent on direct cash-flows from online platforms; it will give those platforms, under CRTC supervision, intrusive oversight powers over news organizations’ business operations; it will undermine journalistic independence . . . .

This, of course, assumes that online platforms will actually participate in the regime that the bill creates, but if they ever do, concerns about the implications of this have been systematically ignored.

Further concerns were raised about the powers granted to the CRTC to compel the provision of any information it deems necessary from any news organization.

Phillip Crawley, Publisher and Chief Executive Officer of The Globe and Mail, raised this specific matter with our committee, asking that the information-gathering powers of the CRTC be “. . . limited to information necessary to confirm the eligibility of news organizations, or to investigate a complaint. . . .”

Here again, Senator Carignan proposed a very reasonable amendment to limit the authorities of the CRTC in exactly that way. But once again, the majority of senators on our committee defeated the amendment.

At the end of the day, none of the minor amendments adopted at committee have addressed any of the bill’s fundamental flaws. Friends, we did not change the water into wine; we just muddied the water more.

Based on witnesses’ testimony, there is absolutely no assurance that Bill C-18 can deliver support for eligible news businesses that the government claims it will. Those who will lose the most as a result of this will be the smaller news businesses in Canada. That is the sad reality of this piece of legislation. But all Canadians will lose if Bill C-18 fails to deliver on its objectives and if all that results from this bill are unfulfilled expectations and yet another trade war with the United States.

The Standing Senate Committee on Transport and Communications had an opportunity to send to the government a sensible message on all of these concerns. I believe we had a duty to exercise sober second thought on this bill; however, the majority of senators failed to do that, and it is Canadians who will now live with the consequences. In our democracy, the majority rules, and I fear that it is Canadians who will now have to live with the consequences of the decision to pass this bill. I wish that it could have been otherwise. Thank you.

Hon. Fabian Manning: Honourable senators, I rise today to speak to Bill C-18, An Act respecting online communications platforms that make news content available to persons in Canada.

The purported purpose of this bill is to regulate what the bill terms “. . . digital news intermediaries to enhance fairness in the Canadian digital news marketplace . . . .” “Fairness” is the word that the government employs most in relation to this bill. The government argues that regulation of digital news intermediaries is necessary to allow for the Canadian digital news market to be sustainable.

To accomplish that supposed objective, this bill does many things. It creates a framework for digital news intermediary operators — online platforms — and news businesses to enter into agreements respecting news content that is made available by the digital news intermediaries. It empowers the Canadian Radio-television and Telecommunications Commission — CRTC — to maintain a list of digital news intermediaries and then enables the CRTC to exempt them from the terms of the bill if the CRTC is satisfied that an intermediary has entered into agreements with news businesses that, again, in the commission’s opinion, satisfy certain criteria of fairness that the CRTC itself will adjudicate.

The bill allows for regulations to be made by the government on how the CRTC is to interpret these criteria. The bill establishes a bargaining process between businesses and digital news intermediaries that the CRTC will oversee. It permits businesses to complain to the CRTC about the way digital news intermediaries are conducting themselves. And, of course, the bill then authorizes the commission to impose, for any contraventions of the legislation, penalties and conditions on the participation of news business in the bargaining process.

The bill also establishes a mechanism for the recovery, from digital news intermediary operators, of costs related to the administration of the legislation.

Colleagues, what this bill does is inject the CRTC into yet another dimension of how the internet and broadcasting have functioned over the past 30 years. This time, the CRTC is to be injected into how Canadians get their news and into who benefits from that consumption of the news.

The Senate recently reviewed Bill C-11. Many witnesses, among them former chairs and commissioners of the CRTC — people who possess considerable knowledge and experience — told us about the limited capacity of the CRTC to take on the new roles envisioned for the commission under Bill C-11.

Now the government is proposing, under Bill C-18, to give the CRTC an even broader role and more power when it comes to the negotiation of revenue-sharing arrangements between online platforms and news businesses. Bill C-18 would impose a board on all parties. That board would, of course, be appointed by the government to conduct the arbitration that is provided for in Bill C-18. It is scarcely surprising that many people question how such a board will credibly adjudicate between very different points of view and in a manner that is seen as legitimate by all parties.

I would argue that the absence of legitimacy is a major problem with this bill, given the scope of authority that is proposed for the CRTC over what are bread-and-butter issues for multiple news outlets — often small news outlets — and the platforms themselves.

The role of the CRTC will also extend to how consumers, or the Canadian public, access and consume news. What I fear is that the task that the CRTC will assume will be so difficult that the government may end up inadvertently undermining the legitimacy of the CRTC itself. That is, of course, not what the government intends. But as with all ill-thought-out good intentions, that may nevertheless be the result.

Despite all the claims by the government that it widely consulted on this bill, there is certainly no clear consensus to suggest that the role proposed by the CRTC will be seen as legitimate by all parties.

I want to focus my remarks today on what I see as some of the core problems with the concepts that underscore the bill.

The first challenge concerns what the ultimate objective of the bill actually is. When I listen to government justifications for this legislation, I hear a lot of buzzwords and phrases.

Minister Rodriguez has said that the bill is important to protect a free and independent press. He says that the bill is about ensuring that Canadians have access to fact-based information. He also said this is about strengthening our democracy. He states that the bill will build a fairer news ecosystem.

We hear those words — “news ecosystem” and “fairness” — a lot from government spokespeople. Not surprisingly, Senator Harder repeated those same themes when he spoke to the bill in the Senate Chamber. Using the same words as the minister, Senator Harder said:

The aim of Bill C-18 is to create a news ecosystem that promotes the creation of high-quality news content and reflects Canada’s diverse voices and stories.

He says that the bill will provide “. . . a legislative and regulatory framework that is flexible, modern and encourages market fairness.” There is that word “fairness” again.

By my count, Senator Harder uttered the word “fair” or “fairness” more than 20 times in his remarks on the bill. He referred to the importance of the government ensuring, through the CRTC, “fair negotiations.” He said that the government had to ensure that everybody gets their “fair share.” He spoke about the need for news businesses to get their “fair compensation.”

Many iterations of that word “fair” were used in Senator Harder’s remarks. The minister also continuously repeats the fairness mantra.

I’ve been around politics for a long time. Excuse me for being a little bit cynical. When a politician uses a word like “fair” that many times, people are wise to check to see if they still have their wallets.

What this is really about is money. It should come as no surprise to anyone that the question of who gets access to revenue streams generated from online advertising is the major focus of this bill. Accessing that revenue stream is what the bill is really all about.

Through this legislation, the government proposes to set up a system where the digital platforms will be required to pay news businesses for posting links to the news content that they have produced. Senator Harder argued the government’s case for doing this by saying that the business model of digital platforms is to capture billions of dollars in advertising revenue by posting these links. But then, he argues, they pay none of that advertising revenue to the originators of the news.

The platforms, of course, see it differently. In their view, what the bill will do is to require them to pay the publishers simply for hosting links to their websites and for bringing more people to their websites. In effect, what they see is a de facto tax for putting the link to the news site on their platforms.

Whether we support the point of view of the government or the platforms, there is no dispute over the fact that with Bill C-18, the government has come down on the side of the legacy news media.

The government argues that the reasons for doing so are grounded in the devastating impact that the internet revolution has had on the legacy news media. Minister Rodriguez himself referenced the allegation that since 2010, about one third of journalism jobs in Canada have disappeared and that Canadian TV stations, radio stations and newspapers have lost approximately $4.9 billion in revenue, even as online advertising revenue has grown.

The bill is in large measure about trying to put the genie back in the bottle and reverse the undoubtedly negative impact that the advent of the internet has had on traditional broadcasters.

Sue Gardner, who in 2021-22 was a visiting professor at the Max Bell School of Public Policy, described this in a recent article as being the equivalent of a government 100 years ago requiring carmakers to pay permanent compensation to companies who had heretofore made buggy whips.

Those buggy whip manufacturers have been following the business model of buggy whip makers for many centuries. Then came along the automobile, and buggy whip makers suddenly found their previous profits badly impacted. Government intervention might make good sense for buggy whip makers, but does it make good sense for society as a whole?

I don’t want to minimize the struggles that traditional news organizations are going through. I know many jobs have been lost. I have seen this in my own province of Newfoundland and Labrador. But I do believe we need to ask ourselves whether heavy-handed government intervention to support an out-of-date business model really makes sense.

If this is what we are doing, then words like “ensuring fair negotiations” and “ensuring that everybody gets their fair share” are really just a cover. What the bill is really about in that case is about justifying government intervention. That intervention will occur through the CRTC to redirect revenue flow.

That brings me to what has been the government’s rhetorical cover for this bill, namely, the argument that it is essential for our democracy to sustain the old way of doing things.

In this regard, Senator Harder’s remarks on Bill C-18 stress the vital services that traditional news broadcasters are said to perform in Canada. He said that “. . . a free and independent press is one of the foundations of a safe, prosperous and democratic society.” Certainly, no one in this chamber would disagree with that premise.

But he also implied that it is largely the traditional broadcasters who deliver for Canadians that fair and unbiased information. Senator Harder implied that unless government supports traditional broadcasters, we will see greater misinformation and disinformation. Specifically, he said:

We have seen how the spread of misinformation and disinformation around the world can damage societies. A robust, questioning media is one of the most effective antidotes to these disorders.

With all due respect, I believe it is a fallacy to argue that traditional media is somehow our antidote to misinformation. Everyone in this chamber has witnessed mainstream media feeding frenzies that result whenever hot-button issues suddenly emerge at the top of the news cycle. A groupthink takes hold. Suddenly the entire parliamentary press is reporting the same story in much the same way. No one wants to be seen as out of step. Investigative journalism has gone out the window.

When this happens — and it happens all too frequently — I have rarely seen any of the mainstream media outlets swim against the tide. When the feeding frenzy is at its peak, I have rarely seen media ask many serious questions that might suggest that perhaps somebody has it wrong. As I just said, investigative journalism has gone out the window.

The idea that government intervention through Bill C-18 is pivotal to create a healthy mainstream media better able, in Senator Harder’s words, “to hold . . . leaders accountable” puts the emphasis in completely the wrong place. The traditional media are not the guardians of objective truth.

I think many Canadians see it the same way. When we consider Canadian news viewing habits, we are seeing a decline in confidence in traditional broadcasting. The average audience for CBC’s supper-hour newscast is just over 300,000 people. That’s less than 1% of the Canadian population. I’m sure many senators opposite watch the CBC religiously, and on this side, I may be the only one, but I do too most times. I too watch it from time to time. In Newfoundland and Labrador, we have good memories about what the CBC was and about the services it did provide, particularly to the rural communities throughout our province, especially in the Labrador region of our province.

But the public’s view of that is changing. Despite Liberal MP Lisa Hepfner’s assertion that online news outlets aren’t news, clearly most Canadians don’t see it that way. Canadians are looking for greater and real diversity in their news. I think that it is confirmed if we seriously consider how many people are watching traditional mainstream news broadcasts in general.

CTV News has around four times the viewership of CBC, but even their viewership is less than 4% of Canadians on most nights. Much of that likely has to do with the availability of greater variety of alternative news sources. But some of it undoubtedly has to do with skepticism concerning some of what is being reported in the mainstream media.

With all due respect to my colleague Senator Harder and to the government, if we really want to counter disinformation, I think the best antidote to groupthink in the media is to celebrate diversity in news sources. I would argue that diversity of opinion that we have now as a result of the internet revolution is a far greater antidote to misinformation than what we will get from bills like the one we have before us.

There is no question that the diversity of opinion on the internet inevitably risks simultaneously greater dissemination of disinformation. But for the informed and critical consumer of information, this should not be a danger. What we should be encouraging as a society is both critical thought and the critical consumption of diverse information. What we should not be doing is acting from a presumption that more government intervention to empower certain news media over others is the solution to our problems. Yet, I fear that — cloaked in a language of fairness and countering disinformation — this is the precise purpose of where the bill is leading us.

Colleagues, this bill requires a fulsome review in committee before we can agree to pass it.

I have only talked about some of the issues and concerns I see with the bill. There are others. In particular, what happens if the platforms simply refuse to cooperate with the legislation? What if they simply de-link all previous Canadian news sources? Is that a possible outcome? Are there other negative outcomes that the government is simply choosing to ignore? We know and have heard that the United States has again signalled, as it did in relation to Bill C-11, that the passage of the bill will have trade implications. Once again, the government seems determined to ignore those concerns.

Like the previous bill, Bill C-11, which we reviewed, Bill C-18 is complex, and its implications are multi-faceted. I hope senators agree with me that the committee reviewing this bill must hear from witnesses on all sides of the issue in order to fully understand the potential implications.

I believe this is essential, since, once again during House debate, the government cut off hearing from witnesses in an attempt to rush the bill through the legislative process. It did not work on Bill C-11, and I highly doubt it will work on Bill C-18.

The irony of the government doing that — even as Senator Harder tells us how important this bill is for democracy — should not be lost on anyone. As we did on Bill C-11, the Senate can — and should — ensure that witnesses who are prevented from appearing in the House are heard in this chamber. Personally, I am skeptical that this bill will be good for the country at the present time. I am concerned about the implications of certain sections of the bill, but I am prepared to listen to all witnesses on all sides of this issue.

I share the concerns of many when it comes to ensuring that our smaller and remote communities in particular have access to quality local news. I fear that Bill C-18 either would not be a solution to that problem or would create so many other problems that the supposed cure may not be worth it. But, as I said, I want to hear from multiple witnesses on all sides and hope the senators opposite will be prepared to do that as well. Thank you.

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