Major lobbyist organization, News Media Canada, is asking the government to accommodate Google with the Online News Act.
Throughout the legislative process, supporters of the Online News Act have reacted overwhelmingly bad to anyone daring to even remotely criticize the Online News Act. Even those who were otherwise supportive of the legislative effort faced backlash for even suggesting that there is room for improvement over then-called Bill C-18. Of course, spiked editorials was only the beginning as many critics of the legislation were routinely subject to insults and accusations of being “Big Tech shills” or “paid shills for Big Tech” among other things.
What’s more, supporters took a no compromise approach. For them, the bill is either perfect in every way or more than good enough in its current state. They regularly screeched ‘full steam ahead’ and shouted for the government to ‘stand up to the bullies’. The lawmakers they paid to have the bill written and passed, obviously, carried out those marching orders to the dismay of independent media who found themselves potentially seeing their careers ending before their very eyes (there was even a petition that many of us signed, asking the government to come to their senses). Somehow, anyone against this law were against democracy and against the media and whatever other defamatory statements supporters could conjure up for people like us.
Of course, people like us stuck to our guns. Many of us were more fact-based, assessing the situation for what it was, and we all largely came to the same conclusions: there’s no way that platforms are going to pay to let others post links to their platforms. The platforms would rather drop news links altogether instead of paying the ransom payments. Unlike the Canadian mainstream media by and large, we weren’t pushing talking points and deliberately passing off blatant lies as facts. We did what we always do: stick to what we know to be true. Truth including the fact that the Online News Act was a horrible mistake and it is going to cause significant damage to the entire media sector – and with Facebook dropping news links, that damage is already happening.
Reality, for the last couple of months, has been setting in. Everything critics like us has said would happen has already begun happening. In the face of reality, supporters of the Online News Act continued to insist it was all a big fancy bluff and that platforms wouldn’t last a week without news links. For them, it was absolutely important to stick to the talking points no matter how false they really were. In this case, the talking point they were sticking to is that platforms depend exclusively on news links and that without news links, the platforms would practically go out of business overnight. I’ll give you a moment to stop laughing.
Of course, you can’t just talk your way out of reality. Sooner or later, reality just takes over, not caring what belief you are pushing onto it. It does what it wants to do. That is precisely what is happening here. Earlier this year, Google had announced that they would be dropping news links. They said that they would be in talks with the government, but that is their current position. In fact, it was just last week that Google had said that their position hasn’t changed at all and that they still intend on moving forward with dropping news links altogether.
The thing is, as most web developers know, unless you have a very specific business model for your website that operates outside of depending on Google (which is very few and far between), having Google drop your website from its search results is basically a death sentence for your website. The damage was already being felt with Meta being forced to drop news links, but Google dropping news links was going to hurt a lot more for most of those sites. Even worse is that media companies would face the damaging effects of both at the same time. As I’ve said many times in the past, unless we are moving towards rescinding the Online News Act entirely, there’s really not much that can be done to avert disaster at this stage.
An interesting question for me in this debate is this: at what point does basic survival instinct finally take over for supporters of this law? Would regret in pushing this horrible legislative mistake set in before Google finally drops news links or after? One can push a firehose of disinformation for only so long before the financial realities start biting you in this situation. This week, we apparently finally have an answer: before Google drops news links.
A major lobbying news organization for this legislation, News Media Canada, made quite the admission this week. They more or less admitted that they may have, just maybe, made a teensy tiny little boo boo with this whole Online News Act business. Yeah, no freaking kidding. In an article on the Globe and Mail, the organization called on the government to listen to the concerns of Google (via @MGeist:
News Media Canada, which represents publishers such as The Globe and Mail, the Toronto Star, Postmedia and La Presse, has been urging all sides to reach an agreement through regulations. It said in a statement to The Globe that the government should address Google’s concerns through the final version of its regulations.
“Google’s submission is a welcome, clear, constructive, good faith articulation of legitimate concerns. We are in agreement with many of the issues they have raised,” said Paul Deegan, News Media Canada’s president and chief executive officer.
“We are aligned that there should be a firm ceiling, rather than a floor on financial liability. We also agree that eligible publishers must have an online presence, non-monetary measures such as training and product can be part of the remuneration, and parties need incentives to enter into negotiation, rather than holding out. We are ready to sit down and work through the detail of these issues before the regulations are finalized. Google plays an essential role in helping Canadians find trusted news sources, and we are confident there is a path forward for the company and publishers to continue what has been a mutually beneficial relationship for many years to come.”
Oopsey!
Even just two weeks ago, this would be an unfathomable position for an organization like News Media Canada. The position all along was to ‘stand up to bullies’, ‘make platforms pay their fair share’, ‘do not compromise’, ‘never back down’, and so on and so forth. The last thing on their minds was to even listen to anything the platforms had to say. Now, they are calling on the government to actually listen to Google. A massive u-turn? Definitely. A major surrender? Absolutely. It was bound to happen sooner or later that supporters would finally stop digging.
A major problem is that we are WAY too far into the process now. The law is passed. The CRTC can still backtrack and demand Google to pay up even more at a later time. Debate is, by and large, over for this. The business uncertainty for Google in all of this will always be there thanks to the way this legislation was crafted. At most, News Media Canada will get another talking point about how they offered compromise and Google didn’t take it. A natural response to that would be, “Congratulations. You won a free talking point” while news sites go bankrupt one by one. It’s a hollow victory at best. That’s why why I say rescinding the law is the first step in restoring sanity here.
As it turns out, University law professor, Michael Geist, agrees that this isn’t going to be enough to turn the tide on the situation:
The regulatory reform suggestions flow from Google’s analysis of the legislation and regulations that it believes are unworkable (I posted analysis on the regulations here, here, here, and here). The company identifies concerns such as unlimited liability (the 4% figure of search revenues, itself a fabricated number, is a floor not a cap), the likelihood that a small number of outlets can hold out by demanding bigger deals and effectively stop the CRTC from granting an exemption, concerns about news outlets that don’t actually produce news qualifying for deals, questions about what counts as support under the law, and doubts about how the timing will work given the CRTC’s parallel approach that could run until 2025.
What is notable about the News Media Canada reversal is that is appears the organization now supports changes on many of these issues. The Globe reports it now says:
“We are aligned that there should be a firm ceiling, rather than a floor on financial liability. We also agree that eligible publishers must have an online presence, non-monetary measures such as training and product can be part of the remuneration, and parties need incentives to enter into negotiation, rather than holding out.”
While this doesn’t address all the regulatory concerns, it hits some key ones.
But the problem is that regulations can only do much. As I wrote months ago, “there are no regulations to be discussed that change the core elements of the law. It’s been decided, has received royal assent, and kicks in anytime within the next 120 days.” Indeed, Google’s response identifies numerous changes to the law itself. Those changes are far more extensive and include removing links as a source of mandated payments (replaced by “displaying news content”), restoration of copyright limitations and exceptions (ie. fair dealing applies), removing broadcasters such as the CBC from the scope of the law by using the government’s own Qualified Canadian Journalism Organization standard, and adjusting the rules on what is considered news content (alpha-numeric text), exemption criteria, and the definitions around digital news intermediaries. Further, it wants to ensure it can elevate high quality news and demote low quality sources in search results and seeks a more balanced approach to arbitration.
These are significant changes that go to the heart of the problem with the law. Even if there was an openness to reform, they would need to be implemented before December 19th. That seems very unlikely given that the government has shown little interest in changes, which suggests that tinkering with the regulation may be insufficient to address a deeply flawed bill. In other words, the biggest problem with Bill C-18 isn’t the regulations, it is Bill C-18.
While it is, indeed, vindicating to see that supporters have now realized that maybe us ‘paid shills’ may have been on to something after all, the regulatory train has left the station long ago. The time to make critical changes ended when Bill C-18 passed. I remember that the day that happened was the day I felt incredibly defeated in this debate. The question was going to be how much all of this was going to hurt. Was I going to soon start looking for a new career? If so, what are the steps I need to take?
I do currently have reason to believe that I will be unaffected given that Meta left my page alone when blocking news links, but there are no absolute certainties at this stage. This major reverse course by one of the major lobbyists may have been vindication, but I personally don’t see this resulting in the news sector being pulled from the brink. Unless the law gets rescinded, the chances of Google deciding against dropping news links is extremely low. At that point, a website like mine, at best, will just sit here reporting on all the casualties of this law, counting the bodies left in its wake. That is something I am not looking forward to by any stretch of the imagination.
Drew Wilson on Twitter: @icecube85 and Facebook.
