Michael Geist: Why the Real Bill C-18 Threat is Bill C-18 | Unpublished

Warning message

  • Last import of users from Drupal Production environment ran more than 7 days ago. Import users by accessing /admin/config/live-importer/drupal-run
  • Last import of nodes from Drupal Production environment ran more than 7 days ago. Import nodes by accessing /admin/config/live-importer/drupal-run

Unpublished Opinions

Michael Geist's picture
Ottawa, Ontario
About the author

Dr. Michael Geist is a law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law. He has obtained a Bachelor of Laws (LL.B.) degree from Osgoode Hall Law School in Toronto, Master of Laws (LL.M.) degrees from Cambridge University in the UK and Columbia Law School in New York, and a Doctorate in Law (J.S.D.) from Columbia Law School.  Dr. Geist is a syndicated columnist on technology law issues with his regular column appearing in the Toronto Star, the Hill Times, and the Tyee.  Dr. Geist is the editor of several copyright books including The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (2013, University of Ottawa Press), From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda (2010, Irwin Law) and In the Public Interest:  The Future of Canadian Copyright Law (2005, Irwin Law), the editor of several monthly technology law publications, and the author of a popular blog on Internet and intellectual property law issues.

Dr. Geist serves on many boards, including the CANARIE Board of Directors, the Canadian Legal Information Institute Board of Directors, the Canadian Internet Registration Authority, and the Electronic Frontier Foundation Advisory Board. He has received numerous awards for his work including the Kroeger Award for Policy Leadership and the Public Knowledge IP3 Award in 2010, the Les Fowlie Award for Intellectual Freedom from the Ontario Library Association in 2009, the Electronic Frontier Foundation’s Pioneer Award in 2008, Canarie’s IWAY Public Leadership Award for his contribution to the development of the Internet in Canada and he was named one of Canada’s Top 40 Under 40 in 2003.  In 2010, Managing Intellectual Property named him on the 50 most influential people on intellectual property in the world and Canadian Lawyer named him one of the 25 most influential lawyers in Canada in 2011, 2012 and 2013.

Click here to view Dr. Geist’s full CV.


Like it

Michael Geist: Why the Real Bill C-18 Threat is Bill C-18

October 22, 2022

Originally posted at: https://rb.gy/zy4jkv

Facebook is a hard company to support. Earlier this week, I attended an excellent talk with Frances Haugen, the well-known Facebook whistleblower, who delivered a compelling case that the social media giant, driven by profit maximization, consistently errs on the side of technical choices that keeps users engaged, angry, and on the platform, often at an enormous societal cost. Haugen identified numerous harms associated with the company’s practices – privacy, the impact on children, misinformation, and algorithmic settings that often inflame rather than educate – and emphasized that there was a need to address these concerns through better regulation (notably transparency and privacy rules).

Haugen’s talk came to mind yesterday as Facebook released a blog post confirming that it had not been invited to appear before the Canadian Heritage committee studying Bill C-18, outlining its concerns, and making it clear that it was starting to think about the prospect of blocking news sharing in Canada:

Faced with adverse legislation that is based on false assumptions that defy the logic of how Facebook works, we feel it is important to be transparent about the possibility that we may be forced to consider whether we continue to allow the sharing of news content in Canada. 

There will be much effort by the government and media lobby groups to paint Facebook as engaging in threatening tactics. These efforts should be rejected because while there is a desperate need for legislative reforms to address some of Facebook’s harms, the harms from Bill C-18 also deserve attention. In the context of the bill, the real threat is not Facebook, but a legislative process that has undermined democratic norms by blocking dozens of witnesses, threats to the free flow of information from payment for links, and the rewarding of some of Canada’s wealthiest companies such as Bell while leaving small media companies ineligible to participate in the mandated negotiation system.

First, the company is right to express frustration that it has been blocked from appearing before the Heritage committee studying Bill C-18. As I noted yesterday, the government and committee intend to move to clause-by-clause review next week with no further witnesses. Indeed, after Canadian Heritage Minister Pablo Rodriguez’s embarrassing appearance on Friday, Liberal MP Anthony Housefather indicated that he had heard enough and that it was time to move to bill review with no further witnesses. Yet the review of Bill C-18 to date has been a theatrical and unserious effort with dozens of important witnesses effectively blocked from appearing before committee. In the case of Facebook, I don’t see how the Minister can say it has “constructive conversations” with the company, but then not give it the opportunity to appear before committee. When Facebook says a broader list of witnesses is needed, it is absolutely right.

Second, Facebook is also right to raise concerns about the value of links. Rodriguez tried to argue yesterday that the bill was about more than links – it is the whole value proposition he insisted – but as Facebook notes, the value of the links largely flows toward the publishers (the company estimates the value at $230 million) who get free referrals, increased advertising revenue, and potential subscriptions. Facebook doesn’t copy or reproduce the full article and it doesn’t post the content itself. It is often the media companies themselves that do the posting. The government and most Bill C-18 lobbyists have tried to shift the discussion away from links toward a more amorphous “value” discussion, but the reality is the foundation of Bill C-18 is payment for links. Whether that is called a “link tax” or simply payment for links is irrelevant. What matters is that the bill threatens the free flow of information online by legislating the principle that facilitating links to information is something that requires payment.

Third, Facebook identifies concerns with the biggest beneficiaries of the bill and its impact on smaller, innovative media companies. The Parliamentary Budget Officer has confirmed that the primary beneficiaries of Bill C-18 are some of Canada’s wealthiest companies such as big broadcasters like Bell, Rogers, and the CBC. The government wants to paint the bill as supporting smaller, local media but it is clear that many smaller media outlets do not even qualify under the bill’s eligibility standards. Rodriguez did not deny this outcome at committee, instead stating that the smaller companies “were much less interested” in Bill C-18.  That’s an odd way to promote the bill and suggests that the government doesn’t have many answers once the hard questions get asked about Bill C-18.

That is presumably why it has worked out to keep the bill out of the public eye and why it wants to block new witnesses from speaking out. It will undoubtedly continue to pursue that strategy by trying to frame the issue as an evil foreign company threatening Canadians. Like many, I wish it would take on Facebook with better privacy laws, competition laws, and workable frameworks on transparency and accountability. But instead its focus is on Bill C-18, which undermines the free flow of information, provides big paydays to Bell, Rogers, and the CBC, and does so little for small, local media that even the Minister admits they aren’t very interested in it.