CRTC Sends Letter to Meta About Screenshots At Behest of Government

The CRTC, under direction from the government, has sent a letter to Meta demanding answers about screenshots.

The situation over Canada’s failed link tax law keeps getting dumber and dumber. When publishers began pushing for a link tax law, the complaint was that linking was akin to “stealing” and that what platforms were doing was scraping news content and making off with all of the profits afterwards. The premise was extremely stupid and the publishers never provided any evidence to support the claims of scraping and profiting off of news content afterwards. Yet, being the crappy organizations that they are, they kept publishing those claims over and over again. It was something I termed Big Lie 1.0.

It was repeatedly pointed out that linking is not only not stealing, but is actually beneficial to the publishers because of the resulting traffic, ad revenue, and added subscriptions. You know, common sense stuff. In response, the publishers went full Own With Logic, On With Lunacy and accused people of making these common sense comments of being “shills for Big Tech”. From there, they tossed out any semblance of balanced journalism and pushed propaganda articles pushing the link tax law, lobbying the government both behind the scenes and their front pages. For them, it was a war against the evils of “Big Tech”, but their campaign ultimately came off as a rendition of Dare to be Stupid.

By the time the debate hit the senate hearings, it was clear that no amount of evidence was going to turn things around. The fact that the legislation has no shot at “saving” journalism didn’t even make a dent in the dense lawmakers pushing to pass this law at the behest of Big Publishing. The fact that publishers need platforms more than platforms need publishers didn’t phase anyone. What’s more, the fact that platforms could just as easily block news links in their efforts to abide by the law was greeted with claims that this was just a “pressure tactic” rather than the common sense response to this then legislation.

In fact, when the platforms were transparent that this would be their response, the lobbyists and government responded with Big Lie 2.0 which said that platforms are censoring them. Nothing about that ever made any sense. For one, this is a private company making a moderating decision, not the government removing or suppressing speech. For another, removing news links is a way for the platforms to legally abide by the law. After all, all evidence pointed to the fact that news links accounts for barely a blip for the platforms traffic, so losing those news links would mean nothing to them.

Ultimately, the legislation passed much to the despair of digital rights advocates and people with actual knowledge of how the internet actually functions. Meta carried through with their warnings and blocked news links. As a result, traffic to news sites plummeted, Meta’s traffic remained unchanged, news organizations went bankrupt and Meta’s stock value soared. It was all so predictable and preventable, but the publishers were hell bent on shooting themselves in the foot. Nothing was going to stop them from driving their businesses off a cliff.

Google, for their part, was preparing to do the exact same thing. Should Google follow through, news websites of all shapes and sizes in Canada would probably all go under overnight. Some might hold on, but it would only be a matter of time before a full blown shut down was going to happen as websites get completely choked off from traffic. The Canadian government knew this and began intense backroom negotiations with Google – likely begging them not to leave. In the end, the Canadian government folded to Google, handing everything Google asked for over and calling it a “deal”.

So, instead of a quick death for news organizations, news organizations were on life support with this self-inflicted situation. With news organizations hit with heavy losses, the Canadian government responded by issuing bailout after bailout after bailout – putting Canadian taxpayers on the hook for all of this stupidity. Despite that, media companies issued wave after wave after wave of layoffs anyway. What ensued was massive consolidations as well as bankruptcies upon bankruptcies upon bankruptcies.

While you’d think lessons would be learned from that, the media, naturally, did exactly the opposite of that. At first, it was holding out hope that Meta would somehow come crawling back after the Canadian government folded under Google’s pressure. We, like so many others, just pointed and laughed at the media companies and supporters making these claims because that had a snowballs chance in hell of ever materializing. For the media, however, this was just a case of “believe hard enough” and it will magically happen on its own. The days became weeks. Weeks became months. Months started turning into years. For many of them, they then went back to the drawing board of how to get out of the jam they put themselves in.

It was then that a brand new wild theory emerged in their crazed and delusional minds. What about screenshots? Surely screenshots occasionally appearing on Meta will be the ticket, right? So, they began lobbying the government about this brand new silly legal theory. With the government already in their back pocket, they just took whatever legal theory they could get their hands on and flew with it by demanding the CRTC to go after Meta over it. This without really thinking about the consequences of such actions. The CRTC responded by asking for evidence about these claims.

It is worth pointing out, at this point, that this truly is a wild new interpretation of the law. When this law was making its way through the legislative process, no one discussed screenshots. It was never even brought up because links were the focus of debate instead. It truly is a wild new legal theory being thrown out there and represents quite the Hail Mary shot from the media corporations to salvage the new law.

Apparently, what the media corporations, and the government for that matter, says, goes. The CRTC has issued a letter to Meta, seemingly floating this legal theory in the process:

Dear Dan Ball:

The Canadian Radio-television and Telecommunications Commission (CRTC) is an independent quasi-judicial tribunal that regulates the Canadian communications sector in the public interest. The CRTC holds public consultations and makes decisions based on the public record.

As you know, in response to the Online News Act (the Act), Meta Platforms Inc. (Meta) announced that users in Canada would no longer be able to view or share news content on its platforms. However, the CRTC has been made aware of reports that news content from Canadian news outlets continues to be available on Meta’s platforms in Canada.

We would appreciate your comments on what measures Meta is taking to comply with the Act, and whether news is being made available on Meta’s platforms, by no later than October 11th, 2024.

Sincerely,

Scott Shortliffe
Executive Director, Broadcasting

This letter alone is truly facepalm worthy on a number of levels. For one, the CRTC is, on paper, supposed to be acting at arms length from the government. This letter shows that this is clearly not the case.

For another, it raises the question of whether or not anyone working at the CRTC actually has a background in law or not. Had they retained someone to interpret the law, they likely would’ve gotten the response that the Online News Act doesn’t really cover screen shots. A good lawyer probably would’ve advised them of this, but either this was legal advice that was received and ignored or the legal council working for the CRTC really sucks at their jobs. Either way, this letter should not have been produced in the first place because it is ludicrously stupid.

Further, it is insanely vague. How is Meta making news available? The letter doesn’t say. What interpretation is being made that determines that Meta is making news available? This was never elaborated on. If anything, the only logical response I can think of for Meta amounts to, “We were told to either enter into negotiated deals with publishers, or block news links. We have blocked news links. As a result, we are in compliance with all applicable laws. Should you find examples of how news links are still appearing on our platforms, we would appreciate you forward those examples to us so we can remove them from out platforms as well.”

At any rate, the letter leaves some wiggle room for interpretation. This boils down to two possibilities in my mind. First, it could be in reference to smaller outlets being allowed to stick around on Meta platforms because they are not eligible news outlets. The other possibility is that the screenshot legal theory is being deployed here. For the former, it’s extremely silly because news outlets that are outside of the scope of what is considered “eligible” news outlets are, of course, outside of the scope of news linking. For the latter, this would easily violate provisions surrounding how these laws should be enforced in a manner that is consistent with freedom of expression. Further, screenshots were never considered throughout the lawmaking process and enforcing this law on screenshots was never the intent of the legislation in the first place. The government, in that case, could always table an amendment to the Online News Act to make it clear that screenshots are also part of the legislation. Otherwise, there is no legal clarity for this.

University law professor, Michael Geist, offered his own analysis that pretty much reaches the same conclusions I made:

The intention of the provision was cover to reproduction (ie. instances where the platform copied all or part of news content) or various means of facilitating access such as linking, aggregation, indexing or ranking. Screenshots were never discussed during the committee study of the bill and I do not believe it was what the government had in mind. However, if the screenshot is treated as a reproduction of the news content, it would be caught by the definition. The CRTC will presumably want to consider whether the use of screenshots is material or de minimis – ie. so small as to render the practice irrelevant for the purposes of applying a mandated payment regime.

It may also factor into consideration how Canadian copyright law treats screenshots, which are viewed as non-commercial user content of the poster, not the original news source. Section 29.21 of the Copyright Act provides that these works must meet certain conditions, but if they do, they are new works that do not infringe copyright. Perhaps even more importantly, the Act gives the individual the right to authorize an intermediary to disseminate the work. Under that interpretation, Meta has the authorization to disseminate the screenshots, which are new works treated under copyright law as non-commercial user content. Further complicating the issue is that the Online News Act also has copyright-related provisions that, on the one hand say that limitations and exceptions do not limit the scope of bargaining (the user content provision is a limitation and exception) and on the other say that eligible news business can initiate bargaining only if they own the copyright in the news content. If the bargaining is about screenshots, those are works that the creator of the screenshot can authorize dissemination.

If all of this sounds complicated, it is because no one – not the government, news outlets or platforms – were thinking about screenshots when the law was being developed. What they were thinking about, however, was freedom of expression as the Online News Act provides at Section 3 that it is to be “interpreted and applied in a manner that is consistent with freedom of expression.” User content is clearly freedom of expression and interpretations that limit its dissemination would run counter that section. Indeed, to include screenshots within the ambit of the Act would open the door to other groups arguing that screenshots of their work requires some form of compensation, thereby creating a chill in their creation or distribution. It is bad enough the law mandates payments for links. To mandate payment for screenshots would further undermine a common activity that Canadian law has for years sought to support within the Copyright Act.

It’s worth it for me to emphasize that it’s the users themselves that are posting the screenshots in the first place. Meta has no role in the posting of those images at all (feel free to find evidence pointing to the contrary, but I doubt anyone will be able to do that).

What is pretty evident is that the large media companies are trying to play “gotcha” games. Like every other scheme they cooked up throughout this debate, this “gotcha” game is destined to fail. If we are going for the screenshot legal theory, this presents a major problem. Policing screenshots is going to be technologically impossible. While the media companies might foolishly believe this is little more than a Meta problem, that is actually predominantly a media problem.

Taking things to the logical conclusion, Meta will have two options on the table. The first option is to issue a legal challenge in the courts. Not only is there a very real possibility that the screenshot legal theory will get shot down, but so will the original bad legal theory that linking is akin to theft of news content on top of it all. After all, snippets, links, and thumbnails are very likely to be interpreted as fair dealing in Canada. As a result, a huge chunk of the law, if not, the whole thing, could theoretically be at risk of being thrown out entirely, causing the $100 million Google price tag to go up in smoke in the process. This, of course, depends on how Meta chooses to fight this law in court should we see this.

The second option is to block Canada altogether. This will inherently cause significant blowback to the Canadian government where Canadian’s will be demanding to know why they can no longer access Facebook “due to government regulations”. Canadian’s, after all, are heavy users of the platform and losing all those social connections and familiarity won’t go unnoticed. Politically, one can only imagine the timing of it all. Meta ditches Canada and the Trudeau government goes into an election defending the actions he took to get Canada kicked out of Meta’s platforms. It’s a vote losing proposition no matter how you slice it. Since Meta makes plenty of revenue in other countries, dropping Canada won’t be the end of the world for them by any stretch of the imagination.

At any rate, this is yet another example of companies burning their hands on the stove. When the publishers demanded payments for links, us experts and observers plainly warned them that the stove was hot. They got mad at us for pointing out that the stove is hot. So, they got the Online News Act passed, slammed their hand on the stove, and it burned them in the form of traffic losses, financial losses, bankruptcies, and credibility hits. They shrieked in pain and we found ourselves giving a collective “we told you so”. Now, with the screenshot theory, they are insisting that this time will be different, clearly indicating that they didn’t learn the first time. Now, here we are again, warning that the stove is hot. Already, we are being ignored and we are giving a collective facepalm, seeing history is repeating itself.

Drew Wilson on Mastodon, Twitter and Facebook.