Hon. Julie Miville-Dechêne: Honourable senators, I want to briefly take part in this debate on Bill C-18 in order to offer some clarification on two of the amendments that I presented and that were rejected by the government.

At this stage, I accept the elected members’ decision, even though I do not accept the justification for this rejection. My role as a senator is to propose legislative changes that seem necessary to me, but I’m not about to lead a one-woman crusade against the will of a majority of MPs. I note, however, that the Senate has three former journalists among its ranks and that, at the end of the day, not one of them supports Bill C-18 in its current form.

I want to clear up any lingering misunderstandings over the amendments that I proposed, which sought to enshrine into law the concept of an exchange of value, monetary or otherwise, between the platforms and the media.

After months of study, consultation and discussion with experts and stakeholders, it became clear to me that there was a flaw in this bill.

It was the witness Konrad von Finckenstein, former chairman of the CRTC and an independent voice, who first brought it to our attention: The bill didn’t specify what had to be negotiated between the media and platforms such as Google and Facebook, resulting in very different expectations on both sides. Mr. von Finckenstein suggested to the committee that the objective of the negotiations be stated in the bill.

Of course, I’m perfectly aware of the imbalance of power between news outlets and internet giants. That’s obvious.

Nonetheless, I believed it was necessary to explicitly state in the bill that the negotiations and the arbitration had to focus on an exchange of value, monetary or otherwise, between the two parties, and not be a wage subsidy for newsrooms.

This didn’t come from me. That is what the government and its spokespersons told us. That is what they stated publicly, and this realistic reference to an exchange of benefits is included in the Australian code, the model on which Canada has mostly based its legislation.

No one, and definitely not Google or Facebook, made me move this amendment. Rather, it is a logical consequence of our debates, our research and the witnesses we heard from.

I won’t deny that I was hoping this clarification — an explicit and pragmatic recognition of the two-way relationship between the media and these platforms — could reduce tension and enable a more constructive dialogue among Facebook and Google, the government, and the media.

What I want most of all, of course, is for quality journalism that’s independent, accessible and financially healthy to continue to exist in Quebec and in Canada so that we, as citizens, can be informed and critical.

That’s one of the requirements for a healthy democracy. In these times of technological change, the fair, equitable, realistic solution isn’t obvious.

As I’ve said, I sincerely hope the government’s gamble will pay off. Thank you.

[English]

Hon. Julie Miville-Dechêne: Honourable senators, I want to speak at third reading of Bill C-18, which I have been following closely in part because I was a journalist in my former life, but also because I met with several groups, read a lot of analyses and reports, and took part in the Standing Senate Committee on Transport and Communications’ detailed study.

Essentially, Bill C-18 is a response to the fact that many media outlets, especially traditional ones, other than CBC/Radio-Canada, are struggling financially, having lost a significant portion of their advertising revenue to giants such as Facebook and Google, which are getting away with an awful lot — some would say too much — in our democracy.

That is a fact, and the government was right to intervene, because news and journalism contribute significant value to society in any democracy.

The chosen solution is based on the Australian model, which forces those platforms to either negotiate compensation agreements with media outlets or be designated by law and subjected to arbitration. The committee adopted an amendment I proposed, which states that the bill will come into force no later than six months after Royal Assent. That is essentially the window that Google and Facebook will have to negotiate voluntary agreements with the media.

However, the committee study revealed that Bill C-18 does have certain shortcomings, which concerns me.

I’m concerned because I want Google and Facebook, which are indirectly responsible for the crisis in the media, to contribute to the economic viability of these businesses, and because I also want Google and Facebook to continue distributing Canadian journalistic content.

Unfortunately, certain aspects of Bill C-18 could result in platforms deciding to stop sharing this content. Yet for many media outlets, being visible on Google and Facebook is essential. The availability and sharing of hyperlinks to news content on these platforms often drives over 50% of web traffic to the media. It would be regrettable — catastrophic even, in some cases — if this traffic were to disappear as a result of the bill’s overreach.

I want to highlight a number of things that I think are problematic in Bill C-18. First of all, while it was being studied, the House of Commons adopted amendments that significantly increased the number of media outlets eligible under Bill C-18. The list grew from about 200 organizations, which had been identified based on strict criteria of eligibility for tax credits, to 650 or 700. Actually, we don’t even know exactly how many there are, which makes it hard to determine how many agreements the platforms would have to enter into to gain an exemption. That makes the negotiation process unpredictable.

This expansion also distances Canada from what is happening in France and Australia, where the number of news outlets included in the negotiation process is much smaller.

I have a lot of sympathy for community media and student radio stations, where many journalists begin their careers, but I personally believe that these organizations would be better served by targeted federal or provincial support programs than by business deals with Google and Facebook. As I see it, it doesn’t really make sense to force those platforms to pay volunteer-run student radio stations for content that is of virtually no value to them.

During clause-by-clause study, the committee rejected an amendment that would have limited and clarified the number of media outlets covered by Bill C-18’s commercial negotiation regime. Unfortunately, this rejection could give Google and Facebook ammunition.

I have a second argument. In the Australian code that was used as a model for Bill C-18, the platforms can be exempt from the application of the law if they have, and I quote:

 . . . made a significant contribution to the sustainability of the Australian news industry through agreements relating to news content of Australian news businesses. . . .

In the Canadian version, however, the possibility of being exempt depends on a long series of criteria that remain vague. For example, what is fair compensation? How will we know if the money received by the media goes toward the production of news? How will the platforms know if they have entered into enough agreements with diverse media? What is meant by the requirement that a “significant portion” of the agreements be concluded with official language minority communities?

I haven’t even mentioned the additional requirements that could be specified in regulations.

[English]

I have no doubt that the intentions behind these criteria are noble, of course. And, of course, I also want strong, diversified and financially healthy media in our country. But this long list of criteria gives the impression that the survival of Canada’s entire media ecosystem rests on commercial agreement with two — or one — foreign companies. Is this really the model that Canada wants to put forward? Do we really believe that the survival of Indigenous media, official language minority community media or local and community media should be made dependent on commercial agreements with American technological giants who can choose to remove this content from their platforms at any time? I am skeptical.

During our hearings, we also heard sharply contrasted views between the media and the platforms on the object of the negotiations. In its briefing documents, the government states that:

Bill C-18 proposes a market-based approach that seeks to ensure digital platforms and news businesses reach fair commercial agreements based on market value. . . .

However, several news outlets have said that they expect Google and Facebook to pay around 30% of their newsroom payroll, which sounds more like a subsidy.

The question therefore arises: Is Bill C-18 proposing a subsidy model for newsroom expenses or a commercial negotiation based on the exchange of value between two parties? Unfortunately, the bill did not really settle this question.

In a brief submitted to the committee, Konrad von Finckenstein, former chairman of the CRTC, noted this problem. He writes:

The Act should spell out the specific subject of negotiation (...). Without such precision negotiations (and possible arbitration) will be unfocused and raise issues not germane to the question to be determined.

The amendment we proposed, which was adopted by the committee, was inspired by testimony from government officials and even the minister, who all agreed that the negotiations should be about the value of the content of news for the platforms and the value that the big platforms bring to the media — in other words, an exchange of value.

[Translation]

In his testimony before the committee, Minister Pablo Rodriguez described the process set out in Bill C-18 as follows, and I quote:

 . . . what we want is to have them both sit down at the negotiating table and to make sure all of this is based on free and informed negotiations. The platforms would be on one side of the negotiating table and the news media would be on the other. The platforms will say that the fact that they’re sharing the news media’s content and that they’re on their platforms has value — which it does — and the news media will say that they do research and that that has value. They will sit down together and negotiate based on that.

In light of this testimony, the committee adopted an amendment that spells out the purpose of the negotiations and that is also based on the Australian code, which served as our model.

The new clause 18.1 reads as follows, and I quote:

The purpose of the bargaining process . . . is to determine the value that each party derives from the news content of an eligible news business being made available by a digital news intermediary and to determine the portion of that value that will be transferred to the eligible news business.

Of course, this amendment doesn’t fix all of the problems with the bill, but it may help to clarify its objectives and bring the parties together.

In conclusion, as you can see, I’m more critical of this bill now than I was when I began my research. For example, I don’t think Bill C-18 should cover mere hyperlinks. The European model seems to have a more balanced approach to that.

Google has actually entered into agreements that with 1,500 news outlets in 15 European countries. Those agreements don’t cover hyperlinks.

Bill C-18 certainly has its flaws, but at least it offers an action plan to rebalance the power dynamics. The government drew on the Australian model in good faith. That was a good idea.

Obviously there’s no way to predict what happens next. The government says the platforms are bluffing. Are they? They keep saying they’re serious. Are they?

What happens if Google and Facebook take news content off their platforms, the media outlets don’t collect a dime and their web traffic plummets? Le Devoir told us that nearly 80% of its web traffic depends on links from various platforms. What impact will this have on news available to Canadians?

I have to say that I’m concerned because it’s clear that Google and Facebook see Canada as a bit player in an international negotiation and believe that we are out of our league.

I will therefore be voting in favour of the bill, but what I really hope, beyond this debate, is that the government’s gamble will pay off. Thank you.

Senator Miville-Dechêne: To my knowledge, since this crisis began, the Copyright Act has not been enforced in relation to articles that are shared because, yes, links are often shared. I don’t think the Copyright Act is the appropriate mechanism to protect journalism. I know this mechanism is used in France. We’ve been much more inspired by the Australian model, which has been successful in mitigating the crisis to some extent. We noticed that in Australia —

Senator Miville-Dechêne: I can’t see into the future, but for now, the government is giving tax credits. These tax credits have helped the media outlets that survived the crisis stay afloat, but they are at their limit. Obviously, these agreements with platforms are welcome and are helping newspapers like Le Devoir prosper more than it would have otherwise. However, who says that Google will still be around in 20 years? I believe I am out of time.

[English]

Hon. Julie Miville-Dechêne: Honourable senators, I rise at second reading of Bill C-18, the online news bill. This bill is important to me personally because I spent many years in the world of journalism.

For starters, the crisis is real. Over the past 14 years, 469 newspapers and news organizations in Canada have closed up shop. The majority of the surviving media organizations have been through cuts that have eviscerated newsrooms. Bill C-18 is clearly not a solution in search of a problem. We really do have a big problem, and the government is right to tackle it.

There are many reasons for this crisis, but nearly all of them have to do with the internet revolution. Over the past 25 years, traditional media, which used to have a monopoly on broadcasting information, lost their exclusivity to multiple competitors: online ads, foreign media, government sites, streaming platforms, countless specialized sources for things like weather forecasts, sports scores and financial news, audio and video-sharing platforms, news and opinion blogs and, lastly, social media platforms, which pounded the last nail into the coffin.

Today, traditional media organizations are facing a profound crisis that affects both their profitability, now that advertisers have left, and the value they add, since so much content is available elsewhere.

Some say that the media has not been able to adapt and is simply a victim of technological change, similar to how the typewriter disappeared when computers became ubiquitous. Others add that the traditional media outlets are the victims of their own inertia and arrogance, and that they deserve their fate.

It gives me no pleasure to say this, but there is some truth to that. Many didn’t see the threat coming, and for a long time, they believed that the competition from online media and social networks, sometimes called the “barbarian invasion,” had no value and would not interest anyone. Accustomed to the comfort of their monopoly, some media outlets looked down on new platforms, different models and alternative paths, and were unwilling to take a hard look at themselves, rethink their offerings and adapt.

However, that is not the whole story. Many Canadian media organizations, big and small, young and old, have been trying out innovative approaches for 20 years. In Quebec in particular, the media landscape changed dramatically with the emergence of not-for-profit agencies or cooperatives, as in the case of Les Coops de l’information. La Presse has gone exclusively digital, and the hybrid subscriber model is working for Le Devoir. Experts such as Sue Gardner and Jean-Hugues Roy have noted that a lot of experiments are under way, and even though there are no conclusive results yet, this could be the key to the solution.

However, we mustn’t confuse traditional media with journalism. We can criticize our media and also have legitimate concerns about the future of journalism. While some organizations have lost their aura and their influence, the importance of journalism has remained intact and is as big as ever.

Whether reports address the need to expose lies, scandals, corruption or cronyism, the essential character of journalism is no less great today than it was 25 years ago. In any free society, journalism is a public good that needs to be protected and supported. As the Washington Post‘s slogan goes, “Democracy Dies in Darkness.”

That being said, investigative work or analysis has the same public value regardless of whether it is done by CBC/Radio-Canada or by a new online journalism platform and whether it is broadcast on the radio, on television, on Twitter or on Facebook.

What is important to Canadian society is that organizations, no matter which ones, have the resources to deliver quality journalism and that the content reaches the public. In other words, Canada needs a robust and diverse news ecosystem that fulfills its role as the watchdog of democracy.

With Bill C-18, the government is proposing a response to the financial difficulties facing journalism in Canada. The government’s proposed solution is quite simple and is directly inspired by the Australian model. Given that the media have lost their advertising revenue to major platforms such as Facebook and Google, these companies should pay the media to publish their content. It is a pragmatic solution. Rich companies will support companies that have become poor.

[English]

For some, Bill C-18 is nonetheless on the wrong track because it is based on a fiction, namely, that Google and Facebook “hurt” the media by making their content available. Media expert Sue Gardner sums up this criticism well:

. . . that premise makes no sense. We know that because news publishers have always been able to opt out of appearing in Google search results, and they don’t. In fact they do the opposite: they vigorously compete to maximize their presences on Google and on Facebook. News publishers want to appear on those platforms, because that’s where people are finding news.

For these critics, the reality is that Google and Facebook offer their users a huge variety of content — of which the media is only a small portion — and the media profit more from the platforms’ referencing than the latter profits from news content. It is possible, but nobody knows. The figures are not public.

The solution for some media experts would be to tax Google and Facebook and set up an independent fund to support journalism.

In an ideal world, setting up a fund would be an easier option, but in reality this is not the avenue the government has chosen for reasons that have to do, apparently, with our trade agreements. As senators, we are called upon to vote on the bill before us. It is possible to improve it, but impossible to rewrite it in such a fundamental way.

I see a number of issues to be addressed in our review of Bill C-18.

First, there is a fundamental question of the expectations of the parties. For large digital platforms, negotiations should focus on the commercial value of the content and services exchanged. In other words, what is the value of news content for Google and Facebook, and how much revenue do those platforms generate for news organizations? For the media, on the other hand, the logic seems different. Some consider that the major platforms should finance up to 30% of their operating costs. This approach is more likely a subsidy than a commercial deal.

To align the expectations of the parties in future negotiations, it would be useful to clarify the objectives of the bill.

Then there is the issue of eligible media. Amendments in the House of Commons have already broadened the admissibility criteria to include small, non-profit community and Indigenous outlets, including those owned by journalists. These broadened criteria mean that we went from about 200 to more than 650 organizations potentially admissible under Bill C-18. This is a welcome expansion because the important thing is to support journalism no matter where it is practised, and not to support only mainstream media. On the other hand, we must ensure that by broadening the scope, we do not open the door to people who do not practise real journalism, but who focus instead on lobbying, fictional or intimate narratives, personal growth or entertainment.

Questions also arise regarding the platforms targeted by Bill C-18. Even though the definition of “digital news intermediary” in the law is very broad, we know that it only covers Facebook and Google at the moment. But we also have to think about the future. Already, Facebook is threatening to block the sharing of Canadian news on its platform if Bill C-18 is adopted. If Facebook carries out the threat, will the bill only target Google? In that case, will this new financing mechanism for Canadian media depend on only one foreign platform? This would be a peculiar situation.

It will also be important to consider the use of funds received by the media. This is a very delicate question, because the government does not want to interfere too much in what it presents as private negotiations. This is a consequence of the approach adopted. That said, the bill won’t be of great assistance to journalism as a public good if the amounts received from Google and Facebook are directed to shareholders or interest payments rather than to hiring journalists, upgrading platforms and to conduct investigations. Much more transparency is needed in this bill.

Questions also arise about the long-term viability of an approach that makes Canadian media partially dependent on foreign private companies that can change or disappear at any time.

[Translation]

In conclusion, Bill C-18 addresses an issue that has a real impact on the democratic health of our country.

Today, even innovative new platforms can’t be profitable without public support, with some exceptions. Excluding CBC/Radio-Canada, many newsrooms are hanging on by a thread.

The Transport and Communications Committee, of which I am a member, will have its work cut out for it. We will have to come to grips with the implications and its limitations of the bill, and perhaps suggest improvements. As with Bill C-11, Bill C-18 is a legislative foray into the ever-changing world of the internet. In the medium term, it is difficult to assess the impact of the measures being put forward. There will inevitably be a process of trial and error, and adjustments will be necessary. However, in my opinion, this effort is certainly more commendable than inaction.

Thank you.

[English]

Hon. Julie Miville-Dechêne: I will be brief. I admire your rather purist vision of journalism. You are right in saying that it is dangerous to take money from large, extremely powerful platforms, but I think we are already beyond that point since journalism in this country is receiving funding from the government. The government is no doubt the most heavily criticized entity in Canada, and now it is giving the media money.

As far as principles go, how is it any different to accept money from platforms that earn some money through journalism?

Senator Miville-Dechêne: Yes.

Senator Miville-Dechêne: Australia certainly isn’t a perfect model, but we noticed that journalists were hired there after the secret agreements that Google and Facebook unfortunately reached with media outlets. We also noticed that, according to some sources, larger media organizations have more money than small ones but that small community media organizations received some money.

As for the Uber that gets you to the restaurant, I tend to agree with Senator Harder because I’m not convinced that’s a good analogy for what’s really happening. There is an exchange, but we don’t really know if the value of journalism to these platforms is equal or unequal to the value journalists derive from being broadcast on these platforms.

[English]

Senator Miville-Dechêne: In a nutshell, we don’t know the value of this content shared on the internet.

As we speak, a lot of private deals are being struck between Google and certain Canadian media outlets. We don’t know the value of these contracts, but we do know that Google, faced with the “threat” of the coming law, is making deals with the media. The fact that Google is doing this means that it sees value in doing it. In our capitalist world, few private companies make deals if they don’t feel the need to do so.

In a way, the platforms are admitting that this journalistic content has value. Based on the rumours we’ve heard, we know that most of the agreements currently require the payment of 30% of the cost pertaining to journalists, based on the number of journalists on staff.

Still, you’re quite right in saying that there is too little transparency in this bill and a lot of unknowns. At some point, the hammer will fall. The government will want to know how many agreements there are and will wonder if that is enough for the law not to apply, as was the case in Australia. Then there will be a race because Google does not want legislation, does not want arbitration and does not want agreements to be imposed either. The government is betting on the platforms — and Facebook does not seem to be doing this — signing agreements before the law goes into force, because that way, the law will not apply. That is what the Government of Australia and the Government of Canada are betting on.

Senator Miville-Dechêne: First of all, Senator Housakos, journalists do have a choice of whether or not to post their articles online.

I know that you believe very strongly in the principle of individual choice. However, we are talking here about a complete paradigm shift. That means that if media outlets don’t allow their articles to be shared, then they lose a lot of readers. It’s a bit of a paradox because the survival of journalism depends in part on really solid content, the kind of journalism that is different from what circulates on social media.

We know that stand-alone, isolated media outlets will not be able to reach enough people. They are therefore obligated, in this new universe, to make their content available by agreeing to share it. The real problem is that we don’t know how much that journalistic content is worth to a platform like Google. Of course, Google won’t give us its figures. As a result, it is extremely difficult to implement a bill like this one, which seeks to put a value on journalistic content, because we have no idea how much that content is worth to the platforms or what it brings to individual media outlets.

We know they no longer get any advertising revenues because the entire advertising market has been picked up by the platforms, but we don’t know whether that could make a difference in terms of traffic. For example, people from the daily newspaper La Presse told me that they were bringing in decent advertising revenues. It wasn’t a windfall, but they had what they needed to survive. That’s why everyone wants to be on social media. Did you have another question?

[English]

Senator Miville-Dechêne: Certainly.