With the disaster that is predictably unfolding in Canada with the Online News Act, it seems that other countries are having very similar debates.
Without a doubt, the passage of Bill C-18 has already been a massive disaster. With Meta announcing the blocking of news links and Google following suit shortly after, the situation in the news sector, though entirely self-inflicted, is looking quite grim these days. This especially thanks to word that Meta is cancelling publisher deals to boot.
While the Heritage Minister is busy throwing temper tantrums on the international stage, it does feel like the whole world is watching the sorry affair going on in Canada. In a vacuum, the events that have unfolded is an international embarrassment. The government pushed a catastrophically bad bill that very obviously doesn’t understand how the internet works, ignored all the expert testimony and subsequent warnings, and is now angry that actions have consequences after – this as the very sector he was vowing to “save” is on the verge of a total collapse because of what the government has done.
Probably the only silver lining in all of this is that Canada isn’t the only one enveloped in a link tax disaster. Indeed, for the large media conglomerates – most famously the Murdoch media empire – the hair brained approach in all of this is to get every country on board with the legislation. The hair brained theory is that if every country passes similar laws, then the platforms just have no darn choice but to start paying the ransom money to the media monopolies of the world. It’s about as dumb as it sounds given how little platforms depend on news links because the data out there today is fairly conclusive that platforms just don’t depend on news sources to drive traffic these days. If anything, the media conglomerates are putting themselves on the fast track to cut themselves off of the one area of growth for them in the last few decades: the internet.
Of course, that’s evidence and facts and anyone that uses anything that goes against the large media companies narrative is automatically a paid shill working for big tech to destroy democracy. Facts? Logic? Reason? Who uses THOSE things these days???
All of this fast tracking to insanity and ruination isn’t an exclusive problem to Canada. There are pushes in other countries to carry through this self-inflicted humiliation. One such country is the United States which currently has a debate in California over the California Journalism Protection Act (CJPA, AB 886). The bill itself is a link tax and it is currently heading towards the California Senate. If you’ve watched the Canadian debates, you’ll likely not that many critics here consider the now called Online News Act as an unconstitutional mess. In the US? The exact same debate is carrying out. From TechDirt:
The CJPA engages with a critical problem in our society: how to ensure the production of socially valuable journalism in the face of the Internet’s changes to journalists’ business models? The bill declares, and I agree, that a “free and diverse fourth estate was critical in the founding of our democracy and continues to be the lifeblood for a functioning democracy…. Quality local journalism is key to sustaining civic society, strengthening communal ties, and providing information at a deeper level that national outlets cannot match.” Given these stakes, politicians should prioritize developing good-faith and well-researched ways to facilitate and support journalism. The CJPA is none of that.
Instead, the CJPA takes an asinine, ineffective, unconstitutional, and industry-captured approach to this critical topic. The CJPA isn’t a referendum on the importance of journalism; instead, it’s a test of our legislators’ skills at problem-solving, drafting, and helping constituents. Sadly, the California Assembly failed that test.
Why CJPA Won’t Survive Court Challenges
If passed, the CJPA will surely be subject to legal challenges, including:
Restrictions on Editorial Freedom. The CJPA mandates that the covered platforms must publish content they don’t want to publish—even anti-vax misinformation, election denialism, clickbait, shill content, and other forms of pernicious or junk content.
Florida and Texas recently imposed similar must-carry obligations in their social media censorship laws. The Florida social media censorship law specifically restricted platforms’ ability to remove journalist content. The 11th Circuit held that the provision triggered strict scrutiny because it was content-based. The court then said the journalism-protection clause failed strict scrutiny—and would have failed even lower levels of scrutiny because “the State has no substantial (or even legitimate) interest in restricting platforms’ speech… to ‘enhance the relative voice’ of… journalistic enterprises.” The court also questioned the tailoring fit. I think CJPA raises the same concerns. For more on this topic, see Ashutosh A. Bhagwat, Why Social Media Platforms Are Not Common Carriers, 2 J. Free Speech L. 127 (2022).
Note: the Florida bill required platforms to carry the journalism content for free. CJPA would require platforms to pay for the “privilege” of being forced to carry journalism content, wanted or not. CJPA’s skewed economics denigrate editorial freedom even more grossly than Florida’s law.
Conclusion
Other countries have attempted “link taxes” like CJPA. I’m not aware of any proof that those laws have accomplished their goal of enhancing local journalism. Knowing the track record of global futility, why do the bill’s supporters think CJPA will achieve better results? Because of their blind faith that the bill will work exactly as they anticipate? Their hatred of Big Tech? Their desire to support journalism, even if it requires using illegitimate means?
Our country absolutely needs a robust and well-functioning journalism industry. Instead of making progress towards that vital goal, we’re wasting our time futzing with crap like CJPA.
You get a number of themes here. This includes the fact that it could compel platforms to financially support click-bait, the fact that the bill is unlikely to survive constitutional muster, the fact that it won’t solve the problems it sets out to solve (ala financial support for media), the fact that this bill doesn’t really recognize how the internet works in the first place, and, of course, the fact that this bill is an exercise in bad law making. Really, you could swap out the names, the text of the bill, and the legal research and replace it all with Canadian references and the criticisms would fit like a glove for the most part. There might be a few minor details that differentiates the two debates, but the big points pretty much fits perfectly with the Canadian debate.
Now, there is a few things in the California example that represents an advantage over the Canadian variation. First of all, this bill only covers a single state. Granted, it is the most populous state in the country, but it only covers one state. While listening in on the senate hearings, I know Senator Paula Simons did at one point wonder how such a law would work at the state level in the first place. So, there’s going to be some additional challenges involved when not applying such a law to the entire country. Those challenges, of course, goes both ways. Whether it is implementing these requirements or the platforms choosing to block the sharing of news, there is going to be a few funky nuances that are bound to crop up regardless of where this debate ends up heading.
The other thing that I am aware of that is an advantage for critics to the California bill is the idea of compelled speech. Indeed, in Canada, the caselaw isn’t all that clear. There is some speculation of what would happen in the event that there is a court challenge revolving around the idea of compelled speech. That speculation suggests that such a concept of government compelled speech would be in violation of the Canadian Charter of Rights and Freedoms. We don’t know for sure because such legal questions have seemingly not been decided on as of yet (probably not a bad thing?)
Meanwhile, in the US, there is a lot of caselaw to go off of that says that government compelled speech is a violation of the US Constitution – specifically the first amendment. So, if the bill evolves to have provisions that say that the platforms must carry news links, then the platforms have plenty of caselaw to work with to get the law thrown out as unconstitutional. What’s more, as the TechDirt analysis points out, if the platforms are forced to carry content they don’t want to carry (ala clickbait, etc.), then the law could be challenged on those grounds as well as that would also fall squarely on the question of compelled speech.
There are probably a number of other interesting differences between the Canadian debate and the California debate, but obviously, I haven’t had time to do deep dive research to find out as of yet because the Canadian government has been keeping me plenty busy with the complete and utter insanity that is going on these days. I can only hope that I can get additional time at some point later on to go further into detail with this law for an interesting compare and contrast thing, but for now, that will have to wait.
In the mean time, there is a silver lining that Canada is not undergoing a uniquely embarrassing arc of events in lawmaking. Other countries are going through this as well at various stages. In some sense, Americans can look to Canada to see first hand what one scenario is going to look like. After all, we went through the entire process and are in the process of finding out how the platforms are going to react. We are racing past the point of speculation and are now looking at how things are playing out in practice. So far, the critics have been bang on accurate, so we’ll see how well that will continue in the weeks and months ahead.
Drew Wilson on Twitter: @icecube85 and Facebook.
