The Canadian government is arguing that screenshots of news articles requires payment. The CRTC apparently has questions about that.
The Online News Act (Bill C-18) is likely to go down in history as one of, if not, the biggest legislative failures by the Trudeau Liberal government. Built on the lies that platforms are stealing from publishers, the legislation was based on the insane premise that links posted by publishers on platforms means that platforms must pay monetary compensation to the publishers afterwards because apparently, that counts as “use”. This despite the fact that it’s the publishers that are getting the benefit of traffic being sent to their respective websites afterwards. It was a stupid idea when this legislation was first tabled and is a stupid idea today.
Experts and observers like us long warned that there would be serious consequences to this. Platforms would simply reject news links altogether and the entire news ecosystem in Canada would suffer as a result. The mainstream media and the federal government responded by doubling down on the lies by pushing the lie that platforms depend on news links and that the idea that companies like Meta would drop news links was all just a big fancy “bluff”. While this was all exasperating, both the mainstream media and the government went even further off the deep end and argued that those who are saying otherwise about the reality bubble they created for themselves are just “shills for Big Tech”.
Having drank the Kool-Aid, the Canadian government rammed the legislation through the process. The question for experts like us was less how much we were right about everything, but rather, just how much damage the Online News Act was going to inflict on the Canadian news sector. Meta, as expected, blocked news links. Despite lobbyists insisting that they would come crawling back to the negotiation table within days, Meta has not come back more than a year later.
The consequences of all of this were just as obvious. Traffic to news websites plummeted, traffic remained unchanged on Meta, the news sector experienced a string of bankruptcies and Meta’s stock value soared.
While this was bad in and of itself, the entire news sector was bracing for an extinction level event. Even I was looking at the possibility that Freezenet itself was going to get killed. That was the fact that Google was preparing to follow suit. As anyone with any web knowledge knows, once you get removed from Google’s services, you’re website is pretty much finished as a profitable venture. There are exceptions to the rule, but a vast majority of news websites aren’t those exceptions.
In response, the Canadian government, realizing just how badly they screwed up with this one, folded to Google. Google had asked for a fund model and said that the link tax concept is bad. In turn, the Canadian government just agreed to all of the demands by Google and called it a “deal”. As a result, the link tax, as a concept, died in the process.
The media sector, as a whole, took massive losses in this whole experiment. While the larger companies got their bailouts, smaller organizations were left much worse off than they were before this whole link tax fiasco began (whether they called for this law or not).
The obvious response for the government is to admit that they completely screwed this whole thing up. Ideally, they would work to rescind the law to at least try to undo the damage the government and mainstream media caused, but that would require basic levels of common sense – something they actively attacked throughout this whole debate, so that was too much to ask for. Still, a reasonable outcome at this point is that the Canadian government would finally leave well enough alone for now and not touch this file. After all, they caused enough damage as it is.
Sadly, even that was too much to ask for.
One of the rumblings we’ve heard ever since Meta dropped news links among those crazy mainstream media people is that screenshots of news articles are actively being shared on Meta platforms. Obviously, the media people themselves are the ones publishing those screenshots with the hopes of sipping little trickles of traffic here and there. So, as the completely delusional theory goes, if screenshots are being shared, then Meta is circumventing the law and is required to compensate news publishers as a result. It’s a nutso legal theory that I figured wouldn’t be worth my time just because there’s exactly zero legal basis to support this. It’s worthy of an eye roll before moving on.
So you can imagine my shock when I found out recently that high ranking government officials were actively pushing this new legal theory. I seriously didn’t think that this needed to be explained, but since the Canadian government is trying to double down again on this insanity, I guess I’ll have to spell this out.
First of all, nothing in the bill itself talks about screenshots. I’ve analyzed the legislation inside and out many times throughout the years and it is clearly written with links in mind.
Second, there is nothing in existing law that says that posting a screenshot or even talking about the news is illegal as far as the platform is concerned. If pictures are being produced that is infringing, then the platform, upon receiving a report of infringement (ala the American DMCA law), can take down said pictures. There is nothing that I know of in law that says that if a screen shot is posted, the platform is automatically liable. Since Meta operates out of the US, that is what Section 230 is for. Further, you tell me where in Canadian law that it says that if something infringing is posted, the platform is automatically liable. To those who say otherwise, I say, “good luck with that.”
Third, depending on the screenshot, it’s very easy to argue that such activity falls well within the scope of fair dealing. Much like linking, fair dealing is an exception to copyright laws that allows for commentary, educational use, and other kinds of uses. To try and claim otherwise would face a legal uphill battle.
Again, I didn’t think any of this needed to be said as it is just plain obvious. Unfortunately, the Canadian government is doubling down again on this stupidity.
While some might chalk this up to some of the dumber ideas being brought up by a handful of bureaucrats, it appears to be a serious idea being floated – so much so that the Canadian government has asked the CRTC to look into this. It’s possible this is all out of an act of revenge for the government basically embarrassing themselves so handily, but that is certainly a possibility. Well, the legal theories are so questionable, even the CRTC is asking the government how the heck they expect the CRTC to proceed in all of this. From National News Watch:
OTTAWA — The Liberal government continues to insist that Meta may still be regulated under its Online News Act, as Facebook and Instagram users find loopholes to share articles despite its news ban.
But the regulator overseeing the implementation of the law suggests it doesn’t have evidence of that in hand.
The Canadian Radio-television and Telecommunications Commission acknowledges reports that claim Meta still makes news available, but says it would “require further evidence to take further action.”
As someone who has followed this debate from the very beginning, a part of me isn’t even surprised by the response. After all, the mainstream media and the government have long used disinformation and conspiracy theories to drive their side of the debate. They never showcased any evidence to support their side of the debate, but in the world of politics, evidence really is an optional thing. While that may have gotten the legislation across the finish line, we are now leaning further and further into the territory of the law. The law and the enforcement of the law, has a higher requirement for actual evidence – something the government and the mainstream media never seemingly had in the first place.
As suggested in my previous article on this, it’s hard to see how the CRTC can move forward in all of this without getting sued, yet again, in these tech policies. The best case scenario is that the government needs to table and pass an amendment to the Online News Act that says that screenshots require compensation. It’s a really dumb idea and would lead to even further consequences, but the Canadian government never really seems to concerned about the consequences of their actions in the first place, so why start now?
Even then, such an amendment is a clear cut example of “just because you can doesn’t mean you should”. First of all, there would likely be enormous consequences across the entire digital landscape is things like screenshots require payments in the first place. Second, it’s quite likely a one way ticket to the courthouse as far as the Canadian government is concerned. There is, after all, obvious Charter rights such a law would violate (specifically freedom of expression). Third, policing such a thing would likely be too much for Meta to handle. As a result, if legal recourse isn’t an option, then pulling services from Canada completely is their likely response to all of this. If the government thought the backlash to the Online News Act was bad before, they haven’t seen anything yet when a huge portion of the population is demanding to know why they can’t access Facebook anymore.
At any rate, it’s hard to see the Canadian government going anywhere with finding evidence of their claims. If the system is serious, then the most evidence they will end up finding are users and journalists posting those screenshots – something that is clearly not in Meta’s control. To idea that the users posting those screenshots is all the work of Meta should get laughed out of the room entirely. This should be a dead end legal argument here.
The fact that the Canadian government is even pursuing this at all highlights just how desperate the Canadian government is at eking out some kind of victory in all of this. Any hair-brained idea will do and this idea that screenshots is compensible activity is well within the category of hair brained ideas. It’s entirely possible that they want to exact revenge on Meta for the crime of allowing the Canadian government to humiliate themselves – even though Meta repeatedly spelled out what their response would be in all of this in plain language.
While I don’t know where this idea is going to head, but unless it just gets dropped (we can all dream), nothing good is going to come from this. We are now facing a bad idea on top of a bad idea on top of a bad idea at this stage. Either way, it seems that the Canadian government isn’t done embarrassing themselves after all.
I wonder how big a hissy fit Trudeau would throw if Meta kicked him, his MPs, his party, and all federal government departments and agencies off of its platforms.
I also wonder if Meta could use a pictures metadata to identify screenshots and then block all screenshots. If not, they could block posting any picture with text.