Almost a year and a half after the passage of the Online
News Act, the Canadian Radio-television and Telecommunications
Commission (CRTC)’s regulatory plan to implement this new
legislation moves closer to completion. On October 8, 2024, the
CRTC launched a new public consultation seeking comments from
interested parties regarding a draft Code of Conduct that would
govern the negotiations that take place between digital news
intermediaries and eligible Canadian news businesses under the
Online News Act‘s mandatory bargaining process. This
new consultation is currently expected to be one of the last
consultations that the CRTC completes before it moves forward with
the publication of a fulsome bargaining framework.
Background
As discussed in our previous Cassels Comment, the Online News Act received royal assent
in June 2023. The Online News Act establishes a mandatory
bargaining process that will require “digital news
intermediaries” (DNIs) — online platforms that make news
content produced by other businesses available on their platform
— to enter into commercial agreements with eligible Canadian
news businesses. Pursuant to these contractual agreements, DNIs
will be required to compensate Canadian news businesses for sharing
their news content on the DNIs’ platforms.
Shortly after the Online News Act received royal
assent, the CRTC published a regulatory plan for the development of a
framework for the mandatory bargaining process. Since then, the
CRTC has overseen numerous public consultations relating to the
bargaining process and the implementation of the Online News
Act more broadly. We have discussed many of these prior
consultations in detail in our ongoing series covering the
implementation of the Online News Act, including
consultations relating to the regulations under the legislation, the structure of the bargaining process itself,
and a proposed exemption from the framework for
Google after the federal government and Google reached a deal
regarding Google’s financial contributions to eligible Canadian
news businesses.
The Code Of Conduct Public Consultation
On October 8, 2024, the CRTC published Online News Notice of Consultation CRTC
2024-236, in which it seeks comments from interested parties
and members of the public regarding the development of the Code of
Conduct that will govern the Online News Act‘s
mandatory bargaining process between DNIs and eligible Canadian
news businesses. The development of a Code of Conduct by the CRTC
is itself a requirement under section 49 of the Online News
Act, which also outlines certain types of provisions that the
Code of Conduct must contain and other provisions it may optionally
include.
In the Summary section of the Notice of Consultation, the CRTC
implicitly acknowledges that there is likely no immediate necessity
for the Code of Conduct, as there are currently no remaining
non-exempt DNIs making news content available in Canada (as
Google’s exemption request has now been granted, and the only
other entity that would have fallen within the definition of an
eligible DNI — i.e., Meta — stopped and continues to
refrain from making news content available on its platforms in
Canada). Nevertheless, the CRTC has stressed the importance of
having a Code of Conduct in place so that any future required
bargaining can proceed without delay.
The Notice of Consultation includes a draft Code of Conduct as
an appendix and invites interested parties to comment on some or
all of the draft. The draft Code includes provisions relating
to:
- A general requirement on all parties participating in the
bargaining to engage in the process in good faith, including by
committing time to the process and engaging in meaningful dialogue
about their respective positions; - A prohibition against “unfair behaviour”, which
includes behaviour that is intended to unreasonably delay or
prolong the bargaining process, deceptive behaviour, abusive or
threatening behaviour, and any other behaviour that is not in
accordance with the procedural obligations agreed to by the
parties; - Prohibitions and limitations on the types of provisions that
can be included in the final negotiated agreement between the
parties; and - Information sharing processes, including a general requirement
that any information exchanged by the parties during the bargaining
process be maintained in confidence and only be used for the
purposes of bargaining activities.
KEY TAKEAWAYS & NEXT STEPS
As discussed above, once the Code of Conduct is finalized and
comes into force, it will likely sit on the shelf for some time.
However, given the quick-changing nature of Canada’s online
news industry, the Code of Conduct and the bargaining process it
governs may suddenly find a practical use. For example, it is
unclear whether Meta will eventually change course on its decision
to block all news content on its platforms in Canada, in which case
Meta could become subject to the Online News Act should it
fail to reach a negotiated deal with the federal government as
Google did. Furthermore, the growth of other online and social
media platforms in Canada telepaths that the definition of DNI
under the Online News Act will eventually capture new
entities that are not currently subject to DNI regulation.
The public consultation relating to the Code of Conduct is
presently the final public consultation listed in the CRTC’s
regulatory plan for the implementation of the Online News
Act. However, further implementation steps remain on the
horizon. For example, the CRTC will shortly be issuing a call for
proposals for an independent auditor to prepare an annual report on
the impact of the Online News Act on Canada’s digital
news marketplace. The CRTC is also expected to begin publishing
decisions setting out the final regulatory framework under the
Online News Act in the coming months.
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