Meta has blocked news links on its Facebook and Instagram platforms for more than a year in response to the Online News Act, resulting in significant lost traffic to many Canadian news sites. The company’s position has been pretty clear from the start: the law applies to digital news intermediaries that make “news content produced by news outlets available to persons in Canada.” By blocking news links, the company believes that it falls outside the definition and therefore is not required to register with the CRTC and enter into negotiations for payments to Canadian news outlets. After Canadian Heritage Minister Pascale St-Onge repeatedly urged the CRTC to examine the issue, this week the Commission sent a letter to Meta giving it seven days to comment on “what measures Meta is taking to comply with the Act, and whether news is being made available on Meta’s platforms.”
The CRTC’s request is unsurprising given the government’s obvious frustration with how the law has played out. The Commission states that it “has been made aware of reports that news content from Canadian news outlets continues to be available on Meta’s platforms in Canada” and now wants answers. While it is important to note that the availability of news alone does not mean Meta is offside the law, those reports have focused on two issues. First, there are sites that are excluded from the Meta link ban since they do not qualify as news outlets. This includes some sites that appear to rewrite or aggregate news alongside sites such as Narcity that have not qualified as Qualified Canadian Journalism Organizations (QCJO). Second, there have long been reports of users posting screenshots of news articles. These do not link back to the original article nor necessarily include full text.
While the Meta response to the CRTC will presumably provide insights into what the company is doing and what news is actually getting through its block systems, what does the law actually say on these issues?
With regard to non-qualifying news outlets, the Online News Act’s definitions provide some answers. As noted above, the law applies to digital news intermediaries that “make news content produced by news outlets available to persons in Canada.” The government’s regulations already scope-in Facebook and Instagram based on their size, but that alone is not enough. The company must also make news content produced by news outlets available. In other words, news on Meta may not be news content caught by the legislation or it may come from sites that are not news outlets under the law. That renders two definitions particularly relevant: “news outlets” and “news content”:
- News outlets are defined as “an undertaking or any distinct part of an undertaking whose primary purpose is to produce news content and includes an Indigenous news outlet or an official language minority community news outlet.” The key wording here is primary purpose. Sites that provide news but is not their primary purpose are not news outlets under the law.
- News content is defined as “content – in any format, including an audio or audiovisual format – that reports on, investigates or explains current issues or events of public interest and includes such content that an Indigenous news outlet makes available by means of Indigenous storytelling.” This is fairly broad but must still include reports on current issues or events of public interest.
The law also includes a definition of “news business” which is an entity that operates a news outlet (ie. if you’re not a news outlet you can’t be a news business) and “eligible news business”, which involves those businesses that may qualify for payments. Those businesses must either be QCJOs or meet a series of criteria that include ensuring that business is not primarily focused on a particular topic such as industry-specific news, sports, recreation, arts, lifestyle or entertainment. The net effect is that sites may have some news (or specialized news such as sports or entertainment) but still fall outside of the law. Meta will likely provide evidence to the CRTC on its news block list and argue that it has been crafted to meet these standards.
The screenshots raise involve a different provision since the legal question is whether screenshots count as making news content available. Section 2 of the Act states:
For the purposes of this Act, news content is made available if
(A) the news content, or any portion of it, is reproduced; or
(B) access to the news content, or any portion of it, is facilitated by any means, including an index, aggregation or ranking of news content.
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.