Media Consortium Facing Potential Legal Action

Don’t be fooled by political discourse. The debates over the media consortium debates should be of utmost concern to Canadians of all political stripes, since the end game (if it plays out as expected) has the potential to shape how broadcast media covers political news, and what we as Canadians can use that content for. All political parties are playing politics (to no one’s surprise) over the consortium debates. So let’s cut through the spin, and get to the meat of what this is really about.

The Conservative’s decision to pull Prime Minister Harper from the consortium debates has created a lot of buzz and talk from us political junkies. The move has been widely criticized as undemocratic by the consortium, Liberals and Greens.

The NDP have been very careful around their messaging towards the debates on the debates opting to use words about debating Harper specifically (which seem to indicate the NDP is passing the ball to the Conservative court regarding the debates) and the more debates the better (making sure they don’t end up looking undemocratic). The NDP seem to be sitting on the fence with the consortium debates (for very good reason) and haven’t 100% committed to them yet. They have only agreed in principle to participate, not that they will show up for these debates. This seems like more of a stalling tactic to me.

Meanwhile the Liberals and Greens have gone full court press on how anti-democratic Harper's move to pull out of the debates was. The consortium itself seems to be shielding the Liberals intentionally from the backlash Trudeau has received on social media from supporting Bill C51 by refusing outright to report on it even when current polls are strongly suggesting the Conservatives and Liberals have lost seats to an NDP surge as a result of the NDP position on the new anti-terror bill.

In order to really get some context around the politics of the debates around the debates, and how serious this has actually become, we need to re-visit when and how this all started. In October last year Global, CTV, and CBC the members of the media consortium took exception to the Conservatives planned use of news footage in attack ads. The consortium took advantage of political discourse around attack ads, and has since taken advantage of the Conservatives politically crying wolf quite a bit on media bias against the party to try to get away with breaking the law on a number of fronts. I’m not at all defending the use of attack ads. I hate them as well, however we need to shift away from attack ads and look very seriously on how this has played out in respects to the law, to fully understand how serious this situation has become for consortium members.

CBC internal e-mails were obtained through access to information back in October showing all three competitors knew the facts on law regarding the use of news coverage in political ads and went to air on news coverage that was used to intentionally mislead Canadians and drum up more public discourse on attack ads to gain support for the consortium position on copyright law. The three broadcasters were also trying to box all political parties in legally on this issue prior to an election by threatening to not air ads that contained any consortium news coverage (attack ads or not).   A court challenge towards the broadcasters position not to air ads with news coverage would have lasted well past the next election. The conservative knew this and moved to try and amend the copyright act and to clarify the law around the use of news material which was a mistake the consortium picked up on. That amendment was later rescinded by the Government as it was later deemed not needed. Current law clearly covers the use of news material for political criticism.

Internal CBC e-mails outlined that the CBC consulted its legal team which referenced to copyright expert Michael Geist in March 2014 and concluded that legally the use of news coverage in political ads was not stealing months prior to CTV, Global, CBC’s leading news coverage that it was stealing (pg. 112 of CBC’s e-mail thread).

To put it bluntly, the consortium members CTV, Global and CBC intentionally mislead Canadians on a point of law, clearly manipulated news casts to that effect all while using discourse on an the unpopular subject of attack ads to make their point to the public.

Geist later strongly criticized the consortium’s policy around not airing political ads with news coverage owned by the consortium:

“Documents obtained by others under the Access to Information Act reveal that the CBC was the instigator behind the April 2014 warning letter to all political parties that the broadcasters wold [sic] not accept political advertisements using their content without express authorization. The email trail reveals that the CBC recognized that it could not reject the advertisements on copyright grounds. Instead, the broadcasters conspired to adopt a policy to reject the ads anyway, an approach that smacks of copyright misuse and a potential Competition Act violation”

Supreme Court Copyright Lawyer Howard Knopf also weighed in on how the consortium was covering the attack ad scandal stating:

“I’ve been involved with copyright law for longer than I care to admit – indeed, more than three decades. But I don’t think I’ve ever seen so much confusion and just plain WRONG commentary about a copyright issue as I’ve seen in the last week of Coverage of the issue of copyright and negative political ads.”

Knopf also said:

“My friend and colleague Prof. Ariel Katz of the U of T Faculty of Law, with whom I have worked closely on a factum that was quite influential in a landmark Supreme Court of Canada fair dealing case and other issues, is an internationally recognized leading copyright scholar and Canada’s foremost expert in the interplay of IP and competition law. Here’s his blog from October 14, 2014 entitled Attack Ads, Copyright, and Collusion: Have Canada’s Major Broadcasters Violated the Competition Act?

 Prof. Katz discusses s. 45 of the Competition Act, which comes under the heading “Conspiracies, agreements or arrangements between competitors” and is perhaps the most feared and potent provision of the legislation. It is used in serious cases. It can put people in jail for up to 14 years and result in a fine of up to $25 million per count, or both, which is a very big time penalty by Canadian standards. Changes made by Parliament to the s. 45 provisions in 2009 that came into effect in 2010 may now make it easier in some circumstances to obtain a conviction. The new section provides for “per se” offences, which do not require proof that competition was lessened “unduly” and there is no need to prove any adverse market effects. There is no need to prove that the conspiracy in question was actually carried out – only that it was entered into. There’s also a less harsh new “civil” enforcement provision to be found in s. 90.1 that involves the Competition Tribunal, which may or may not be of interest in the current situation. To be crystal clear, nothing I am saying or have said accuses anyone of any offence or violation under this or any other provision of the Competition Act. I am merely pointing out that there are provisions in the Competition Act that may be relevant, depending on the facts, and that folks, including the Commissioner of Competition, may be interested in looking at this situation.”

Knopf, Geist and Katz are all leading heavyweight independent legal experts on copyright law. Katz as listed above is also one of Canada’s leading experts on Canadian competition law.

A few days after the attack ad scandal broke; Rick Mercer took to the airwaves repeating the consortium line that using news coverage for political advertising was stealing, in which CBC’s internal e-mails state their own legal team didn’t even support that claim. A day after Mercer’s rant aired, York University saw it fit to provide Mercer with an honorary law degree which could explain why currently the NDP are taking up issues with hosting any debates at universities. From the Huffington Post:

“The NDP had the same concern as the Conservatives, in that the venues being proposed are universities,” one source said, requesting anonymity. “The NDP’s argument was that universities are not really neutral.”

Fast forward to May 2015. The consortium is very publicly and noticeably trying to shield the Liberals from any backlash on bill C51 by not reporting on the social media backlash. The day after the Liberals supported bill C51 and at the height of the Liberal backlash on twitter, the consortium lead with a Liberal platform announcement. Even after almost a full week of social media protest, and Liberal members posting pictures of them burning their membership cards in protest to the parties support of it, the consortium instead attacked Elizabeth May on her failed attempt at comedy.

If you read in between the lines of the consortium moves, it seems as though they are pretty much daring the conservatives to move forth legally on consortium members. The consortium seems to think that it has the political upper hand here considering the conservatives have cried wolf on media bias several times, and that no one will believe the conservative position.

The consortium seems to also think that they have a much wider reach towards Canadians. Consortium journalists have used that line consistently when questioning the Conservatives after Harper pulled out of the debates. If the C-51 backlash and the current polls shows us anything, it’s that traditional media has very little influence on voter intention. You know what they say about playing with fire.

The Liberals, in their demand letter to the consortium on the debates, want “clarification” on how debate footage can be used from the consortium. That issue was settled in October with Geist, Knopf and Katz weighing in on the subject and with the CBC’s legal team back in March, 2014. So why are the Liberals asking for clarification on ownership of debate coverage?

It seems like the Liberals are asking the consortium if they will continue to push the copyright issue to shield Trudeau from attacks (which could be a stark misuse of copyright law as Geist noted, and have a major impact on online commentary and coverage of the consortium lead debates as a result).

We have yet to know publicly what the real agreement was with the consortium between the Liberals, NDP, Greens, and the Bloc. That agreement needs to be made public by all parties now!

What completely surprises me about all of this is the political position the Greens have taken on the consortium debates. The Greens have been stark and solid supporters of allowing anyone to use copyright protected material to criticize politicians in the past, and are trying to frame an eventual pull out of the consortium debates by the NDP after the legal hammer drops on the consortium as a result of all of this, as a coordinated political attack by the Conservatives and NDP against the Liberals and Greens:

"In my view, there is an attempt to get the Liberals off the opposition map… and the NDP doesn’t want the Greens there,” one person involved with the negotiations said. “Two parties who are diametrically opposed are working together."

There seems to be a lot of framing of the debate around the debates by all parties. What comes next will be probably one of the biggest stories about media and journalism we have seen in a long time, and has the potential to shape how political news is covered in this country. How this will play out is anyone’s guess, but it really doesn’t look good for the consortium.

Bill C51 will have an impact on our civil liberties, however media control over criticism of political leaders is a far worse infraction of our civil liberties.  How are we supposed to know what government is doing, if media is shielding these political leaders from that criticism and controlling the conversation.  How would we know our rights could be violated by future governments of any political stripe, if we have media intentionally misleading Canadians for political gain.

As someone with education broadcast journalism, a free press is a pillar of democracy.  We have laws in place to ensure those pillars remain standing.  Laws that need now to be enacted on this media consortium to ensure that after October, Canadians can fully trust the information they are getting from major media companies are accurate and without prejudice.  Otherwise the next time, we may never know about another type of bill that could be worse off from bill C51.  Once that free press pillar falls, we can not accept ourselves as a democracy.  This monster that CTV, Global, and CBC needs to be seriously dealt with.

UPDATE: Liberal Leader Justin Trudeau's political adviser Gerald Butts has responded to this article, claiming it a "conspiracy theory".  If all of this is a conspiracy theory, than why is Trudeau's chief political adviser responding to it?

 Hey @Justin_Ling, you might want to revise your guess about history's lamest conspiracy theory. https://t.co/gYw4mLnSJD

— Gerald Butts (@gmbutts) May 25, 2015