Why Bill C-10 has faced so much political controversy | At Issue
https://www.cbc.ca/news/opinion/opinion-digital-privacy-bill-c11-1.5863117
Digital privacy law is being updated for the first time in decades, and it's imperative we get it right
Canadians need to ensure Bill C-11 is framed to give proper digital privacy protection
This column is an opinion by Vass Bednar and Mark Surman. Bednar is the executive director of McMaster University's Master of Public Policy in Digital Society Program, and writes the newsletter Regs to Riches about startups and public policy. Surman is executive director of the Mozilla Foundation, the global nonprofit that makes the Firefox browser and advocates for issues like online privacy. For more information about CBC's Opinion section, please see the FAQ.
Over the past year, Canadians — just like much of the world — have increasingly lived their lives online. The pandemic pushed us to use the internet in new ways: digital doctor visits, first dates and family dinners over Zoom, grocery shopping via apps.
The pandemic has not only magnified the value of the internet, but also what's wrong with it. Newsfeeds that spread misinformation. Digital ads that track and target us. Algorithms that make opaque decisions about our credit ratings or our dating lives. Smart speakers that listen to — and store — our every word.
In short: the internet is indispensable — and imperfect.
At this fraught moment in our digital society, Canada has a major opportunity to address much of what's wrong online. Several weeks ago, Canadian legislators in the House of Commons introducedBill C-11 to enact the Consumer Privacy Protection Act.
Bill C-11 embodies the principles of Canada's Digital Charter, which envisions the internet as a tool for both innovation and the public good. And it hints at an internet where individual Canadians, not big tech platforms, are in full control of their data.
Of course, Bill C-11 is just that — a bill, not yet a law. It holds a great deal of promise, but it needs serious improvements if it is to live up to the vision outlined in the Digital Charter.
Canada is at an inflection point. We can improve this law so that it truly protects and empowers Canadians, giving us control over our relationship with Big Tech, gig economy companies and retailers who constantly track us online. Or, we can pass a law that makes a show of protecting privacy, but leaves many of the worst problems with the internet — limited consumer agency, no accountability for Big Tech — unsolved and unchecked.
For C-11 to succeed, we need movement on three fronts.
Bill C-11 includes privacy-protection measures such as the right to opt out of having personal data collected by third parties. (Rick Bowmer/Associated Press)
First, we need to make sure the new rights the bill offers Canadians are clear and actionable.
What the bill includes so far is quite promising, things like the right to an explanation of why an artificial intelligence (AI) made a decision about me, or the right to opt out of having my data collected in the first place.
These things may sound abstract, but could have huge benefits in our everyday lives. Imagine if you could press a button to understand why Amazon or an airline is giving you a different price today than it did yesterday (an AI did that!). Or if you could join a points program at a store and understand why you received certain promotions but not others.
For instance, grocery or retail points programs often tailor rewards to match the foods and products that members of the program purchase most often, meaning that different people receive different discounts based on the data that has been collected. While this might seem more efficient, it also creates inequality as people that do not use a program's app cannot access the same modest discounts on everyday essentials available to a member. Simply having better explanations available for why someone is receiving a discount offer, similar to Facebook's "Why am I seeing this ad?" feature, could be helpful.
The rights in C-11 have the potential to drive changes like these. Yet, as we have seen with similar laws in Europe, real change is hard to come by.
Clear lines in the law and public education about digital rights will be essential if Canadians are going to use and benefit from them.
The new digital privacy protection legislation is vague about how enforcement will work. (Kite_rin/Shutterstock)
The second front crucial to the bill's success? Strong enforcement and accountability.
This is another place where Bill C-11 is at once promising and worrying. While Bill C-11 provides new order-making powers to the Privacy Commissioner and allows fines up to $25 million or 5 per cent of a firm's gross revenue, it's vague about how all of this will work.
Looking again to Europe and laws such as theGeneral Data Protection Regulation (GDPR), we see that they only work if entities like the Privacy Commissioner are incredibly well resourced. And as a report from browser developer Brave demonstrated, European governments have not equipped their national authorities to enforce the GDPR.
Canadian lawmakers must learn from this example and lay out a plan to invest accordingly. And they must resist the temptation to shift the enforcement burden to consumers — it is time to relieve us of reviewing the Terms and Conditions of every single app.
Unlike legislation in some other jurisdictions around the world, Canada's digital consumer privacy law lacks a mechanism for collective representation when there is an issue that affects a group of people. (Shutterstock/Dan74)
The third front where we need progress is collective rights and intermediaries — giving Canadians the option to demand more from Big Tech collectively rather than on their own.
Just like pollution, abuse of data affects individuals and the collective. When we're on Facebook or YouTube, your data is mixed with my data. In order to get better treatment from online services, we need a way to push for our rights together, not just as individuals. Otherwise, the burden on individuals to manage their digital privacy will remain absurdly high.
Imagine if your Amazon shopping history and habits lived not on Amazon, but in something like a co-op or credit union that you belonged to. You could decide how much of that data Amazon gets to see — and how much you want to hold back.
California's consumer privacy law includes a mechanism for this kind of collective representation. And, in a recent proposal by the EU Commission, Europe is considering something similar.
However, Bill C-11 completely ignores this topic, much to the detriment of Canadians. We've seen how structures like cooperatives have helped to solve power imbalances throughout Canadian history, and our legislators should take inspiration from them as we continue to re-imagine appropriate data governance.
Canada's new online privacy legislation is encouraging, but there is much more work to be done to ensure that our digital society works for all of us. There's plenty of data out there on the best practices related to privacy and data management, and our new framework should leverage all of it.
Canada has the ability to put its people in charge of their own data. Bill C-11 is an opportunity to manifest the principles of the Digital Charter in a way that has an impact on millions of Canadians — and sets an example that ripples beyond our borders.
- This column is part of CBC's Opinion section. For more information about this section, please read our FAQ.
Canada would feel effect of proposed U.S. Stop Online Piracy Act
Wikipedia limits service in anti-piracy act protest
Some of the best-known sites on the internet, including Wikipedia, are limiting access today in a "Dark Wednesday" protest against legislation before the U.S. Congress intended to curb copyright infringement that critics say will limit the scope of the web and adversely affect legitimate websites.
Popular Canadian sitesjoining the protest include Tucows, a Toronto-based site that hosts free software for download, Identi.ca, a social microblogging service and the blog of University of Ottawa law professor Michael Geist, an oft-cited expert on copyright issues.
There are two similar bills addressing protection of intellectual property online currently being considered by Congress: the Stop Online Piracy Act (SOPA), which is before the House of Representatives judiciary committee, and the Protect Intellectual Property Act (PIPA), which is to be voted on by the Senate next week.
Last weekend, the White House signaled its opposition to the bills, which are supposed to make it easier for copyright holders to go after "foreign rogue websites" suspected of facilitating infringement of copyright.
Under the current draft of SOPA, courts could order credit card firms, online payment companies like PayPal and advertising networks to stop doing business with those websites. They could also order search engines to stop linking to them and internet service providers (ISPs) to block their customers from accessing them, although in recent days, the lead sponsor of SOPA, Republican congressman Lamar Smith, has backed off the ISP provision. PIPA was also being revised to address some of the concerns voiced in recent days.
Taking sides on SOPA
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News Corp. CEO Rupert Murdoch, pictured with his wife at the 2011 Golden Globe Awards in Los Angeles, has been tweeting his support for the Stop Online Piracy Act (SOPA). (Mario Anzuoni/Retuers)
SOPA's backers include the film, recording, media and pharmaceutical industries while internet and technology companies like Google, Facebook, Twitter, Mozilla, Yahoo and eBay have voiced opposition to the bill.
The debate on the proposed legislation has been heated, as some recent tweets on the subject show.
After the White House voiced its opposition to the bills, media baron Rupert Murdoch, the CEO of Fox News, tweeted, "So, Obama has thrown in his lot with Silicon Valley paymasters who threaten all software creators with piracy, plain thievery."
Wikipedia founder Jimmy Wales tweeted on Tuesday: "The encyclopedia will always be neutral. The community need not be, not when the encyclopedia is threatened!"
In Canada, SOCAN (Society of Composers, Authors and Music Publishers of Canada) general counsel Paul Spurgeon told CBC News, "Anything that helps copyright owners get paid for the use of their works is welcome."
SOPA would affect Canada
Although SOPA and PIPA are intended to target "rogue" websites, for Canadians, the concern is that if the laws are passed, there might be collateral damage that harms legitimate sites.
Jimmy Wales, founder of Wikipedia, speaks at the London Cyberspace Conference on Nov. 1, 2011. Wikipedia will black out the English-language version of its website on Jan. 18 to protest anti-piracy legislation under consideration in Congress. (Kirsty Wigglesworth/Associated Press)
Geist outlined some of the ways the proposed laws could affect Canadians in a Jan. 17 blog post:
In the eyes of U.S. law, websites with domain names ending in .com, .net and .org are treated as American domestic domain names, regardless of where their owners are based, he wrote.
SOPA ignores the fact that IP addresses are assigned by regional, not national, entities. The American Registry for Internet Numbers allocates IP addresses for Canada (both for individual customers and governments) and 20 Caribbean nations, as well as the U.S. However, under SOPA, the IP addresses it allocates would be considered "domestic," i.e., U.S., IP addresses.
SOPA effectively grants the U.S. jurisdiction over some foreign websites, said Geist.
"The long arm of U.S. law reaches into Canada using SOPA," he said.
Intellectual property protection as U.S. foreign policy
If SOPA becomes law, Geist expects the U.S. to try to export its rules to Canada and other countries.
He notes that the Canadian government's proposed copyright modernization act, Bill C-11, was modelled on a similar U.S. law backed by the same industries pushing SOPA. The bill has been criticized for its provisions to prohibit the recording and copying of content protected by digital locks, which many say are too restrictive and prevent even the lawful use of copyrighted material.
University of Ottawa law professor Michael Geist is expressing his concern about the potential impact of SOPA in Canada by making his website dark on Jan. 18. (CBC)
U.S. diplomatic cables released by WikiLeaks reveal that Bill C-11 came about at least in part as a response to U.S. pressure on Canada to tighten its copyright laws.
Spurgeon said SOCAN hopes Bill C-11 "will also address the issues of online piracy, but it remains to be seen if the proposed law will achieve this purpose."
Under SOPA, intellectual property protection will become "a significant component of U.S. foreign policy," Geist writes.
If a website owner outside the U.S. wants to challenge a U.S. court order issued under SOPA, "the owner must first consent to the jurisdiction of the U.S. courts."
A viable alternative
Corynne McSherry, intellectual property director for the internet rights group Electronic Frontier Foundation, raised several other concerns about SOPA in an interview in November with Dan Misener of the CBC Radio program Spark.
SOPA could require Visa, MasterCard and PayPal to block payments to certain foreign websites or to websites a U.S. court rules are facilitating access to those sites. The payments wouldn't necessarily have to come from Americans; they could be from anywhere in the world.
McSherry also worries that under SOPA, some of the websites that activists living under authoritarian regimes, such as those behind the Arab Spring protests, use to circumvent government blocks on parts of the internet could be viewed as infringing on copyright and shut down by a U.S. court order.
But McSherry does see a potential benefit for Canada if SOPA becomes law: cutting-edge technology entrepreneurs will just offer their services outside the U.S.
"You may see a lot of new jobs in Canada," she said.
For McSherry, copyright is "an issue you cannot legislate your way out of." And with SOPA, she says, "the cost so far outweighs any conceivable benefit."
There is a simple solution, she told Misener: "Give people access to authorized, legitimate alternatives, and they will go there."
https://www.youtube.com/watch?v=0XKEWOm0uQw&ab_channel=TrueNorth
Justin Trudeau is determined to censor the internet (Feat. Ezra Levant)
Just How Extreme is Bill C-18?: It Mandates Payments For Merely Facilitating Access to News
Bill C-18, the Online News Act, is less than 48 hours old, but the more you examine the bill, the worse it gets. My previous posts unpacked why the general policy is bad for press independence and competition as well as why the bill features a misguided attempt to require payments for links. Yet the bill requires an even deeper look since it goes far beyond “compensating journalists when they use their content” (as Prime Minister Justin Trudeau said yesterday in the House of Commons) or even linking to news articles. Rather, the bill requires compensation for facilitating access to news in any way and in any amount.
In doing so, it eviscerates the claim that there is a tangible connection between the requirement to pay for the value of news articles on social media and search platforms (called digital news intermediaries or DNI’s in the bill). Rather, Bill C-18 is a shakedown with requirements to pay for nothing more than listing Canadian media organizations with hyperlinks in a search index, social media post, or possibly even a tweet. At a time when we need the public to access to credible news, Canadian Heritage Minister Pablo Rodriguez believes that large Internet companies that engage in the act of facilitating access to news – not copying, not using, not even directly linking – should pay for doing so.
The relevant provision in the bill is Section 2(2), which 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 bill proceeds to require payments – either by way of agreements that must be approved by the CRTC or final offer arbitration – for DNIs who make available news content. Section 2(2)(a) covers what most Canadians would likely consider constitutes the “use” mentioned by the Prime Minister yesterday, namely the reproduction of news content by a DNI such as Facebook or Google. As it happens, those companies largely agree and have licensed news content where they reproduce the content in full.
More notable is Section 2(2)(b), which covers facilitating access to news content. This is certainly designed to cover linking but the broad language almost surely extends beyond linking to a specific article. Indeed, a link to the general home page of the Toronto Star, National Post, Globe and Mail or many other Canadian media sites can be said to facilitate access to news content, particularly since the provision adds that it can be just a “portion of it” and the facilitation can occur “by any means.”
Canadian Heritage Minister Pablo Rodriguez has made a point of contrasting his bill with the Australian code on the same issue. The Australian code treats three activities as making content available: reproduction of the content, providing an extract of the content (designed to target short blurbs of the stories), or links to the content. While that too is worthy of criticism (the Australian code has actually never been used), it does not cover mere facilitation of access.
Why does this matter?
There was a time when this government fashioned itself as pro-Internet, supportive of net neutrality, and a staunch defender of fundamental freedoms, including freedom of the press and other media of communication. Yet it cannot credibly claim to support those principles and simultaneously legislate barriers to accessing media by mandating payments for facilitating access to media sources.
Further, how is any of this possibly constitutional? Would the Supreme Court uphold a law whose effect could be to limit facilitation of access to news? Moreover, how does the entire Bill C-18 framework fit within the federal government’s jurisdiction? It isn’t broadcast, it isn’t telecommunications, and it isn’t copyright. If the government claims powers over anything involving the Internet then it believes there are no real limits on its jurisdiction.
Millions of Canadians choose to access media through search and social media. As I pointed out in yesterday’s post, the resulting referral links already provide enormous value at no cost. Setting even that aside, mandating payments for services that facilitate access to media sources runs counter to basic freedoms and casts aside the suggestion that the bill is limited to a “quid pro quo” of payment for links to news articles. Bill C-18 is shamefully over-broad, an embarrassment to the news media lobby that demanded it, and unworthy of a government that sees itself as a model for the rest of the world on media freedoms.
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First Session, Forty-fourth Parliament, 70 Elizabeth II, 2021-2022 |
HOUSE OF COMMONS OF CANADA |
BILL C-11 |
An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts |
FIRST READING, February 2, 2022 |
MINISTER OF CANADIAN HERITAGE |
SUMMARY
Available on the House of Commons website at the following address: www.ourcommons.ca |
1st Session, 44th Parliament, 70 Elizabeth II, 2021-2022 |
HOUSE OF COMMONS OF CANADA |
BILL C-11 |
An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts |
Short Title
Broadcasting Act
Related Amendments
An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act
Cannabis Act
Consequential Amendments
Access to Information Act
Canadian Radio-television and Telecommunications Commission Act
Copyright Act
Referendum Act
Canada Elections Act
Accessible Canada Act
Transitional Provisions
Review
Coming into Force
Published under authority of the Speaker of the House of Commons |
explanatory notes
If you have any questions or comments regarding the accessibility of this publication, please contact us at accessible@parl.gc.ca.
First Session, Forty-fourth Parliament, 70-71 Elizabeth II, 2021-2022 |
HOUSE OF COMMONS OF CANADA |
Skip to Document NavigationAn Act respecting online communications platforms that make news content available to persons in Canada |
FIRST READING, April 5, 2022 |
MINISTER OF CANADIAN HERITAGE |
SUMMARY
This enactment regulates digital news intermediaries to enhance fairness in the Canadian digital news marketplace and contribute to its sustainability. It establishes a framework through which digital news intermediary operators and news businesses may enter into agreements respecting news content that is made available by digital news intermediaries. The framework takes into account principles of freedom of expression and journalistic independence.
The enactment, among other things,
(a) applies in respect of a digital news intermediary if, having regard to specific factors, there is a significant bargaining power imbalance between its operator and news businesses;
(b) authorizes the Governor in Council to make regulations respecting those factors;
(c) specifies that the enactment does not apply in respect of “broadcasting” by digital news intermediaries that are “broadcasting undertakings” as those terms are defined in the Broadcasting Act or in respect of telecommunications service providers as defined in the Telecommunications Act;
(d) requires the Canadian Radio-television and Telecommunications Commission (the “Commission”) to maintain a list of digital news intermediaries in respect of which the enactment applies;
(e) requires the Commission to exempt a digital news intermediary from the application of the enactment if its operator has entered into agreements with news businesses and the Commission is of the opinion that the agreements satisfy certain criteria;
(f) authorizes the Governor in Council to make regulations respecting how the Commission is to interpret those criteria and setting out additional conditions with respect to the eligibility of a digital news intermediary for an exemption;
(g) establishes a bargaining process in respect of matters related to the making available of certain news content by digital news intermediaries;
(h) establishes eligibility criteria and a designation process for news businesses that wish to participate in the bargaining process;
(i) requires the Commission to establish a code of conduct respecting bargaining in relation to news content;
(j) prohibits digital news intermediary operators from acting, in relation to certain news content, in ways that discriminate unjustly, that give undue or unreasonable preference or that subject certain news businesses to an undue or unreasonable disadvantage;
(k) allows certain news businesses to make complaints to the Commission in relation to that prohibition;
(l) authorizes the Commission to require the provision of information for the purpose of exercising its powers and performing its duties and functions under the enactment;
(m) establishes a framework respecting the provision of information to the responsible Minister, the Chief Statistician of Canada and the Commissioner of Competition, while permitting an individual or entity to designate certain information that they submit to the Commission as confidential;
(n) authorizes the Commission to impose, for contraventions of the enactment, administrative monetary penalties on certain individuals and entities and conditions on the participation of news businesses in the bargaining process;
(o) establishes a mechanism for the recovery, from digital news intermediary operators, of certain costs related to the administration of the enactment; and
(p) requires the Commission to have an independent auditor prepare a report annually in respect of the impact of the enactment on the Canadian digital news marketplace.
Finally, the enactment makes related amendments to other Acts.
Available on the House of Commons website at the following address: www.ourcommons.ca |
TABLE OF PROVISIONS
Online News Act
Definitions
Freedom of expression
Purpose
Designation
Application
Duty to notify
List of digital news intermediaries
Broadcasting
Telecommunications service providers
Exemption order
Interim order
For greater certainty
Review
Reasons
Statutory Instruments Act
Publication of orders
Definition of party
Steps in bargaining process
Initiation of bargaining process
Duty to bargain
Good faith
Initiation of bargaining process
Limitations and exceptions
Mediation and final offer arbitration
Liability of operators
Eligible news businesses — designation
Public broadcasters
Public list
Identification of news outlets
Application to Commission
Agreement with group
Roster of qualified arbitrators
Arbitration panel
Conflicts of interest
Commission assistance
Decision of arbitration panel
Factors
Dismissal of offers
Other submissions
Decision final
Decision deemed to be agreement
Reasons
Costs
Right of recovery
Compliance order
Covered agreements
Other agreements
Establishment of code
Compliance order
Prohibition
Complaint
Duty to provide information
Minister and Chief Statistician
Confidential information
Offence — disclosure
Designated persons
Power to order production
Contravention — eligible news business
Violation — operators, directors, etc.
Maximum amount of penalty
Procedures
Designation
Notice of violation
Undertaking
Payment of penalty
Evidence
Burden of proof
Defence
Directors, officers, etc.
Vicarious liability
Limitation or prescription period
Information may be made public
Receiver General
Debt due to Her Majesty
Regulations
Judicial powers
Sections 126 and 127 of Criminal Code
Fees for services
Costs apportioned by Commission
Cost recovery
Debt due to Her Majesty
Spending
Regulations — Governor in Council
Regulations — Commission
Annual report — independent auditor
Review
Access to Information Act
Canadian Radio-television and Telecommunications Commission Act
Broadcasting Act
Telecommunications Act
Order in council
1st Session, 44th Parliament, 70-71 Elizabeth II, 2021-2022 |
HOUSE OF COMMONS OF CANADA |
BILL C-18 |
An Act respecting online communications platforms that make news content available to persons in Canada |
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Short Title
Short title
1 This Act may be cited as the Online News Act.
Interpretation
Definitions
2 (1) The following definitions apply in this Act.
Commission means the Canadian Radio-television and Telecommunications Commission. (Conseil)
covered agreement means, as applicable,
(a) an agreement that is entered into as a result of bargaining sessions referred to in paragraph 19(1)(a) or mediation sessions referred to in paragraph 19(1)(b); or
(b) an arbitration panel’s decision that is deemed to be an agreement under section 42. (accord assujetti)
digital news intermediary means an online communications platform, including a search engine or social media service, that is subject to the legislative authority of Parliament and that makes news content produced by news outlets available to persons in Canada. It does not include an online communications platform that is a messaging service the primary purpose of which is to allow persons to communicate with each other privately. (intermédiaire de nouvelles numériques)
eligible in relation to a news business, means that the business is designated under subsection 27(1). (admissible)
entity includes a corporation or a trust, partnership, fund, joint venture or any other unincorporated association or organization. (entité)
Minister means the Minister of Canadian Heritage or, if another federal minister is designated under section 5, that minister. (ministre)
news business means an individual or entity that operates a news outlet. (entreprise de nouvelles)
news content means content — in any format, including an audio or audiovisual format — that reports on, investigates or explains current issues or events of public interest. (contenu de nouvelles)
news outlet means an undertaking or any distinct part of an undertaking, such as a section of a newspaper, the primary purpose of which is to produce news content. (média d’information)
operator means an individual or entity that, through any means, operates a digital news intermediary. (exploitant)
Making available of news content
(2) 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.
Freedom of expression
3 (1) For greater certainty, this Act is to be interpreted and applied in a manner that is consistent with freedom of expression.
Journalistic independence
(2) This Act is to be interpreted and applied in a manner that supports the journalistic independence enjoyed by news outlets in relation to news content produced primarily for the Canadian news marketplace, including local, regional and national news content.
Treatment of news content
(3) This Act is to be interpreted and applied in a manner that is aimed at ensuring news content is made available by digital news intermediaries without undue manipulation or interference.
Purpose
Purpose
4 The purpose of this Act is to regulate digital news intermediaries with a view to enhancing fairness in the Canadian digital news marketplace and contributing to its sustainability, including the sustainability of independent local news businesses.
Designation of Minister
Designation
5 The Governor in Council may, by order, designate any federal minister to be the Minister referred to in this Act.
Application
Application
6 This Act applies in respect of a digital news intermediary if, having regard to the following factors, there is a significant bargaining power imbalance between its operator and news businesses:
(a) the size of the intermediary or the operator;
(b) whether the market for the intermediary gives the operator a strategic advantage over news businesses; and
(c) whether the intermediary occupies a prominent market position.
Duty to notify
7 (1) If this Act applies in respect of a digital news intermediary, its operator must so notify the Commission.
Information required
(2) An individual or entity that operates an online communications platform must, at the request of the Commission and within the time and in the manner that it specifies, provide the Commission with any information that it requires for the purpose of verifying compliance with subsection (1) or preventing non-compliance with it.
List of digital news intermediaries
8 (1) The Commission must maintain a list of digital news intermediaries in respect of which this Act applies. The list must set out each intermediary’s operator and contact information for that operator and specify whether an order made under subsection 11(1) or 12(1) applies in relation to the intermediary.
Statutory Instruments Act
(2) The Statutory Instruments Act does not apply in respect of the list maintained under subsection (1).
Publication
(3) The Commission must publish the list on its website.
Broadcasting
9 This Act does not apply in respect of a digital news intermediary that is a broadcasting undertaking in respect of its broadcasting, as those terms are defined in subsection 2(1) of the Broadcasting Act.
Telecommunications service providers
10 For greater certainty, this Act does not apply to a telecommunications service provider, as defined in subsection 2(1) of the Telecommunications Act, when it is acting solely in that capacity.
Exemptions
Exemption order
11 (1) The Commission must make an exemption order in relation to a digital news intermediary if its operator requests the exemption and the following conditions are met:
(a) the operator has entered into agreements with news businesses that operate news outlets that produce news content primarily for the Canadian news marketplace and the Commission is of the opinion that, taken as a whole, the agreements satisfy the following criteria:
(i) they provide for fair compensation to the news businesses for the news content that is made available by the intermediary,
(ii) they ensure that an appropriate portion of the compensation will be used by the news businesses to support the production of local, regional and national news content,
(iii) they do not allow corporate influence to undermine the freedom of expression and journalistic independence enjoyed by news outlets,
(iv) they contribute to the sustainability of the Canadian news marketplace,
(v) they ensure a significant portion of independent local news businesses benefit from them, they contribute to the sustainability of those businesses and they encourage innovative business models in the Canadian news marketplace, and
(vi) they involve a range of news outlets that reflect the diversity of the Canadian news marketplace, including diversity with respect to language, racialized groups, Indigenous communities, local news and business models; and
(b) any condition set out in regulations made by the Governor in Council.
Effect of order
(2) The order exempts the operator, in relation to the intermediary, from the application of
(a) section 21 and any provision of any regulations made under section 85 that is in relation to section 21; and
(b) any other provision of this Act and any provision of any regulations made under subsection 81(1) or section 85 that is specified by the Commission, in its discretion, in the order.
Conditions
(3) The order may contain any conditions the Commission considers appropriate.
Approval of Treasury Board
(4) The order is subject to the approval of the Treasury Board if the order exempts the operator from the application of section 82 or any provision of any regulations made under subsection 81(1).
Interim order
12 (1) The Commission may, in relation to a digital news intermediary, make an interim order that has thesame effect as an exemption order if the following conditions are met:
(a) its operator has requested an exemption order in relation to the intermediary;
(b) the operator has entered into agreements with news businesses that operate news outlets that produce news content primarily for the Canadian news marketplace;
(c) the Commission is unable to make the exemption order because it is of the opinion that, taken as a whole, the agreements do not satisfy the criteria set out in subparagraphs 11(1)(a)(i) to (vi); and
(d) the Commission is of the opinion that it will be able to change its opinion because the operator is, in good faith, taking measures that will permit the criteria to be satisfied within a reasonable period.
Conditions
(2) The interim order must contain conditions respecting the measures being taken by the operator and may contain any other condition the Commission considers appropriate.
Approval of Treasury Board
(3) The interim order is subject to the approval of the Treasury Board if the order exempts the operator from the application of a provision referred to in subsection 11(4).
Cessation of effect
(4) The interim order must specify the period referred to in paragraph (1)(d) and ceases to have effect at the end of that period.
For greater certainty
13 For greater certainty, agreements referred to in paragraph 11(1)(a) or 12(1)(b) include agreements that were entered into before the day on which this section comes into force.
Review
14 (1) For greater certainty, the Commission may review an exemption order or an interim order.
Repeal of exemption order
(2) The Commission may repeal an exemption order if
(a) the Commission is of the opinion that the operator of the digital news intermediary in question is acting in a manner that is inconsistent with this Act;
(b) a condition referred to in subsection 11(1) is no longer met; or
(c) a condition contained in the exemption order is not met.
Repeal of interim order
(3) The Commission may repeal an interim order if
(a) the Commission is of the opinion that the operator of the digital news intermediary in question is acting in a manner that is inconsistent with this Act;
(b) a condition referred to in paragraph 12(1)(c) or (d) is no longer met; or
(c) a condition contained in the interim order is not met.
Reasons
15 The Commission must publish on its website reasons for
(a) making or not making a requested exemption order;
(b) deciding to make or not to make an interim order; and
(c) deciding to repeal an exemption order or interim order.
Statutory Instruments Act
16 The Statutory Instruments Act does not apply in respect of an exemption order or an interim order.
Publication of orders
17 The Commission must publish on its website each exemption order and interim order that it makes.
Bargaining Process
Overview
Definition of party
18 In sections 19 to 44, party means, as applicable, an operator, an eligible news business or a group of eligible news businesses.
Steps in bargaining process
19 (1) The bargaining process consists of
(a) bargaining sessions;
(b) if the parties are unable, within a period that the Commission considers reasonable, to reach an agreement in the bargaining sessions, mediation sessions; and
(c) if the parties are unable, within a period that the Commission considers reasonable, to reach an agreement in the mediation sessions and at least one of the parties wishes to initiate arbitration, final offer arbitration.
Scope of bargaining process
(2) The bargaining process is limited to matters related to the making available, by the digital news intermediary in question, of news content produced by a news outlet that is identified under section 30 as a subject of the bargaining process and, if an application is made under subsection 31(1), determined by the Commission to be a subject of the bargaining process.
Scope of final offer arbitration
(3) Any final offer arbitration under the bargaining process is limited to monetary disputes.
Initiation of bargaining process
20 Only an eligible news business that is listed under subsection 29(1) or a group of eligible news businesses that are listed under that section may initiate the bargaining process with an operator.
Duty to bargain
21 An operator must participate in the bargaining process with the eligible news business or group of eligible news businesses that initiated it.
Good faith
22 Parties that are participating in the bargaining process must do so in good faith.
Copyright
Initiation of bargaining process
23 For greater certainty, an eligible news business or a group of eligible news businesses may initiate the bargaining process in relation to news content in which copyright subsists only if
(a) the business or a member of the group owns the copyright or is otherwise authorized to bargain in relation to the content; or
(b) the group is authorized to bargain in relation to the content.
Limitations and exceptions
24 For greater certainty, limitations and exceptions to copyright under the Copyright Act do not limit the scope of the bargaining process.
Mediation and final offer arbitration
25 For greater certainty, the use of news content is not to be the subject of mediation sessions or final offer arbitration during the bargaining process if the operator in question
(a) has made payments to the eligible news business in question for the use of that content in accordance with a licence or agreement between the operator and the business; or
(b) has made payments or has offered to make payments to the business in question for the use of that content in accordance with the relevant tariff approved by the Copyright Board for the use of that content.
Liability of operators
26 (1) If news content is made available by a digital news intermediary and its operator is a party to a covered agreement in relation to the making available of the news content by the intermediary, the operator is not liable under the Copyright Act for an infringement of copyright in relation to activities that are subjects of that agreement.
For greater certainty
(2) For greater certainty, nothing in this Act limits the liability of an eligible news business under the Copyright Act for an infringement of copyright.
Eligibility
Eligible news businesses — designation
27 (1) At the request of a news business, the Commission must, by order, designate the business as eligible if it
(a) is a qualified Canadian journalism organization as defined in subsection 248(1) of the Income Tax Act; or
(b) produces news content that is primarily focused on matters of general interest and reports of current events, including coverage of democratic institutions and processes, and
(i) regularly employs two or more journalists in Canada,
(ii) operates in Canada, including having content edited and designed in Canada, and
(iii) produces news content that is not primarily focused on a particular topic such as industry-specific news, sports, recreation, arts, lifestyle or entertainment.
Commission’s initiative
(2) The Commission may make an order under subsection (1) on its own initiative.
Revoked designation
(3) Despite subsection (1), a news business must not be designated as eligible if it was previously designated and had its designation revoked under paragraph 59(1)(c).
Statutory Instruments Act
(4) The Statutory Instruments Act does not apply in respect of an order made under subsection (1).
Public broadcasters
28 The designation of a public broadcaster as an eligible news business is subject to any other conditions specified in regulations made by the Governor in Council.
Public list
29 (1) The Commission must maintain a list of eligible news businesses and publish that list on its website. An eligible news business is only included on the list if it gives its consent.
Statutory Instruments Act
(2) The Statutory Instruments Act does not apply in respect of the list maintained under subsection (1).
Identification of news outlets
30 When initiating the bargaining process, an eligible news business or group of eligible news businesses must notify the operator of the digital news intermediary in question of the news outlets that are to be the subjects of the bargaining process.
Application to Commission
31 (1) If the operator is of the opinion that a news outlet identified under section 30 by an eligible news business or group of eligible news businesses should not be a subject of the bargaining process, it may apply to the Commission for a determination of the issue.
Determination
(2) A news outlet is to be a subject of the bargaining process if the Commission is of the opinion that the outlet is operated exclusively for the purpose of producing news content — including local, regional and national news content — consisting primarily of original news content that is
(a) produced primarily for the Canadian news marketplace;
(b) focused on matters of general interest and reports of current events, including coverage of democratic institutions and processes;
(c) not focused on a particular topic such as industry-specific news, sports, recreation, arts, lifestyle or entertainment; and
(d) not intended to promote the interests, or report on the activities, of an organization, an association or its members.
Summary dismissal
(3) If the Commission is of the opinion that an application under subsection (1) is frivolous, vexatious or not made in good faith, it may dismiss the application summarily and the news outlet that is otherwise the subject of the application is a subject of the bargaining process.
Agreements
Agreement with group
32 (1) If a group of eligible news businesses enters into an agreement with an operator as a result of bargaining or mediation sessions under the bargaining process, the group must file a copy of the agreement with the Commission within 15 days after the day on which it is entered into.
For greater certainty
(2) For greater certainty, nothing in this Act prevents the agreement from applying to eligible news businesses that join the group after the agreement is entered into if the agreement provides for it.
Final Offer Arbitration
Roster of qualified arbitrators
33 (1) The Commission must publish qualifications for arbitrators on its website and must maintain a roster of arbitrators who meet those qualifications.
Proposals
(2) Parties that are engaging in bargaining or mediation sessions may propose candidates for the roster.
Arbitration panel
34 (1) A final offer arbitration must be conducted by a panel that is composed of three arbitrators who
(a) are selected by the parties from the roster; or
(b) are appointed by the Commission from the roster, if the parties do not select the arbitrators within a period that the Commission considers reasonable.
Appointment by Commission
(2) The Commission must take the preferences of the parties into account if it appoints the arbitrators to the panel.
Status
(3) An arbitration panel is not a federal board, commission or other tribunal for the purposes of the Federal Courts Act.
Conflicts of interest
35 (1) If the Commission is of the opinion that an arbitrator selected by the parties has a conflict of interest, that arbitrator is ineligible to be a panel member and a replacement must be
(a) selected by the parties from the roster; or
(b) appointed by the Commission from the roster, if the parties do not select the replacement within a period that the Commission considers reasonable.
Appointment by Commission
(2) The Commission must not appoint an arbitrator who has a conflict of interest.
Commission assistance
36 The Commission may, at the request of an arbitration panel, provide administrative and technical assistance to the panel.
Decision of arbitration panel
37 The arbitration panel makes its decision by selecting the final offer made by one of the parties.
Factors
38 An arbitration panel must take the following factors into account in making its decision:
(a) the value added, monetary and otherwise, to the news content in question by each party, as assessed in terms of their investments, expenditures and other actions in relation to that content; and
(b) the benefits, monetary and otherwise, that each party receives from the content being made available by the digital news intermediary in question.
Dismissal of offers
39 (1) An arbitration panel must dismiss any offer that, in its opinion,
(a) allows a party to exercise undue influence over the amount of compensation to be paid or received;
(b) is not in the public interest because the offer would be highly likely to result in serious detriment to the provision of news content to persons in Canada; or
(c) is inconsistent with the purposes of enhancing fairness in the Canadian digital news marketplace and contributing to its sustainability.
Consultation
(2) Before dismissing an offer in accordance with subsection (1), the arbitration panel must consult the Commission.
Reasons and new offers
(3) If the arbitration panel dismisses an offer in accordance with subsection (1), it must
(a) provide written reasons to the party that made the offer and give them an opportunity to make a new offer; and
(b) if a new offer is made under paragraph (a), provide the other party with an opportunity to withdraw its offer and make a new one.
Other submissions
40 An arbitration panel may, in making its decision, seek oral or written submissions from the Commission and from the Commissioner of Competition appointed under subsection 7(1) of the Competition Act.
Decision final
41 An arbitration panel’s decision is final.
Decision deemed to be agreement
42 An arbitration panel’s decision is deemed, for the purposes of its enforceability, to be an agreement entered into by the parties.
Reasons
43 An arbitration panel must provide written reasons for its decision to the parties and the Commission.
Costs
44 The arbitration panel may apportion the costs related to final offer arbitration between the parties, if the parties cannot agree, within a period that the panel considers reasonable, on how to share the costs. In doing so, the panel must take into account each party’s ability to pay, their conduct during the arbitration and any other factor that it considers appropriate.
Civil Remedies
Right of recovery
45 For greater certainty, an eligible news business or group of eligible news businesses may, during the period specified in a covered agreement, collect payments due under it and, if they are not made, recover the payments in a court of competent jurisdiction.
Compliance order
46 For greater certainty, if a provision of a covered agreement is not complied with, a party to the agreement may, in addition to any other remedy available, apply to a court of competent jurisdiction for an order directing compliance with the provision.
Competition Act
Covered agreements
47 Sections 45 and 90.1 of the Competition Act do not apply in respect of
(a) any activity, including the making of payments or the exchange of information, that is carried out in accordance with a covered agreement between an operator and a group of eligible news businesses;
(b) any provision of the covered agreement that is related to that activity; or
(c) any bargaining or mediation session or any final offer arbitration under the bargaining process set out in sections 18 to 44 to which an operator and a group of eligible news businesses are parties.
Other agreements
48 (1) Sections 45 and 90.1 of the Competition Act also do not apply in respect of
(a) any bargaining activity between an operator and a group of eligible news businesses that is conducted with a view to entering into an agreement;
(b) any activity, including the making of payments or the exchange of information, that is carried out in accordance with an agreement; or
(c) any provision of an agreement that is related to an activity referred to in paragraph (b).
Definition of agreement
(2) In this section, agreement means an agreement that
(a) is not a covered agreement;
(b) is entered into by an operator and a group of eligible news businesses the members of which operate news outlets that produce news content primarily for the Canadian news marketplace; and
(c) is in relation to the making available of that content by a digital news intermediary operated by the operator.
Code of Conduct
Establishment of code
49 (1) The Commission must, by regulation, establish a code of conduct respecting bargaining in relation to news content — including any bargaining and mediation sessions during the bargaining process set out in sections 18 to 44— between
(a) operators of digital news intermediaries that make available news content that is produced primarily for the Canadian news marketplace by news outlets; and
(b) eligible news businesses or groups of eligible news businesses.
Purpose of code
(2) The purpose of the code is to support fairness and transparency in bargaining in relation to news content.
Mandatory contents
(3) The code of conduct must contain provisions
(a) respecting the requirement to bargain in good faith that is set out in section 22;
(b) requiring parties to bargain in good faith even if they are bargaining outside of the bargaining process set out in sections 18 to 44;
(c) respecting the requirement to bargain in good faith that is referred to in paragraph (b); and
(d) respecting the information that the parties require to make informed business decisions.
Discretionary contents
(4) The code of conduct may, among other things,
(a) prohibit the use of specified provisions in agreements, including agreements that are entered into as a result of bargaining or mediation sessions under the bargaining process set out in sections 18 to 44; and
(b) set out examples of unfair behaviour that could arise during bargaining.
Compliance order
50 (1) If an operator, eligible news business or group of eligible news businesses fails to comply with the code of conduct, the Commission may, by order, require the operator, business or group to take any measure the Commission considers necessary to remedy the non-compliance.
Statutory Instruments Act
(2) The Statutory Instruments Act does not apply in respect of an order made under subsection (1).
Discrimination, Preference and Disadvantage
Prohibition
51 In relation to news content that is produced primarily for the Canadian news marketplace by a news outlet operated by an eligible news business and that is made available by a digital news intermediary, the operator of the intermediary is prohibited from acting in any way that
(a) unjustly discriminates against the business;
(b) gives undue or unreasonable preference to any individual or entity, including itself; or
(c) subjects the business to an undue or unreasonable disadvantage.
Complaint
52 An eligible news business or group of eligible news businesses may make a complaint to the Commission if the business or group has reasonable grounds to believe that an operator has, in relation to the business or a member of the group, contravened section 51.
Provision of Information
Duty to provide information
53 An operator or news business must, at the request of the Commission and within the time and in the manner that it specifies, provide the Commission with any information that it requires for the purpose of exercising its powers or performing its duties and functions under this Act.
Minister and Chief Statistician
54 (1) The Commission must, on request, provide the Minister or the Chief Statistician of Canada with any information submitted to the Commission under this Act.
Restriction
(2) Information that is provided to the Minister in accordance with subsection (1) is only to be used by the Minister for the purpose of permitting the Minister and the Governor in Council to exercise their powers and perform their duties and functions under this Act.
Confidential information
55 (1) For the purposes of this section, an individual or entity that submits any of the following information to the Commission may designate it as confidential:
(a) information that is a trade secret;
(b) financial, commercial, scientific or technical information that is confidential and that is treated consistently in a confidential manner by the individual or entity that submitted it; or
(c) information the disclosure of which could reasonably be expected to
(i) result in material financial loss or gain to any individual or entity,
(ii) prejudice the competitive position of any individual or entity, or
(iii) affect contractual or other negotiations of any individual or entity.
Prohibition — disclosure
(2) Subject to subsections (4), (5), (7) and (8), if an individual or entity designates information as confidential and the designation is not withdrawn by them, it is prohibited for an individual described in subsection (3) to knowingly disclose the information, or knowingly allow it to be disclosed, to any individual or entity in any manner that is calculated or likely to make it available for the use of any individual or entity that may benefit from the information or use it to the detriment of any other individual or entity to whose business or affairs the information relates.
Application to individuals
(3) Subsection (2) applies to any individual referred to in any of the following paragraphs who comes into possession of designated information while holding the office or employment described in that paragraph, whether or not the individual has ceased to hold that office or be so employed:
(a) a member of, or individual employed by, the Commission;
(b) in respect of information disclosed under paragraph (4)(b) or (5)(b), the Commissioner of Competition appointed under subsection 7(1) of the Competition Act or an individual whose duties involve the carrying out of that Act and who is referred to in section 25 of that Act; and
(c) in respect of information provided under subsection 54(1), the Minister, the Chief Statistician of Canada or an agent of or an individual employed in the federal public administration.
Disclosure of information submitted in proceedings
(4) If designated information is submitted in the course of proceedings before the Commission, the Commission may
(a) disclose it or require its disclosure if it determines, after considering any representations from interested individuals and entities, that the disclosure is in the public interest; and
(b) disclose it or require its disclosure to the Commissioner of Competition on the Commissioner’s request if the Commission determines that the information is relevant to competition issues being considered in the proceedings.
Disclosure of other information
(5) If designated information is submitted to the Commission otherwise than in the course of proceedings before it, the Commission may
(a) disclose it or require its disclosure if, after considering any representations from interested individuals and entities, it determines that the information is relevant to the determination of a matter before it and determines that the disclosure is in the public interest; and
(b) disclose it or require its disclosure to the Commissioner of Competition on the Commissioner’s request if it determines that the information is relevant to competition issues being raised in the matter before it.
Use of information disclosed to Commissioner of Competition
(6) It is prohibited for the Commissioner of Competition and any individual whose duties involve the administration and enforcement of the Competition Act and who is referred to in section 25 of that Act to use information that is disclosed
(a) under paragraph (4)(b) other than to facilitate the Commissioner’s participation in proceedings referred to in subsection (4); or
(b) under paragraph (5)(b) other than to facilitate the Commissioner’s participation in a matter referred to in subsection (5).
Disclosure
(7) The Commission may disclose designated information obtained by it if requested to do so under subsection 54(1).
Information inadmissible
(8) Designated information that is not disclosed or required to be disclosed under this section is not admissible in evidence in any judicial proceedings except proceedings for failure to submit information required to be submitted under this Act or for forgery, perjury or false declaration in relation to the submission of the information.
Offence — disclosure
56 (1) Every individual who contravenes subsection 55(2) is guilty of an offence and is liable on summary conviction,
(a) for a first offence, to a fine of not more than $5,000; and
(b) for a second or subsequent offence, to a fine of not more than $10,000.
Offence — use
(2) Every individual who contravenes subsection 55(6) is guilty of an offence and is liable on summary conviction,
(a) for a first offence, to a fine of not more than $5,000; and
(b) for a second or subsequent offence, to a fine of not more than $10,000.
Defence
(3) An individual is not to be found guilty of an offence under subsection (2) if they establish that they exercised due diligence to prevent the commission of the offence.
Administration and Enforcement
Production Orders
Designated persons
57 The Commission may designate persons or classes of persons for the purposes of section 58.
Power to order production
58 (1) A person designated under section 57 may, for a purpose related to verifying compliance or preventing non-compliance with this Act, by order require an operator or an eligible news business to produce, within the time and in the manner specified in the order, for examination or copying, any record, report, electronic data or other document that the designated person has reasonable grounds to believe contains information that is relevant to that purpose.
Copies and data
(2) The designated person may
(a) make copies of or take extracts from the record, report, electronic data or other document produced under subsection (1);
(b) reproduce any document from the data, or cause it to be reproduced, in the form of a printout or other output; and
(c) prepare a document, or cause one to be prepared, based on the data.
Assistance
(3) The operator or eligible news business and every director, officer, employee and agent or mandatary of the operator or business must
(a) give all assistance that is reasonably required to enable the designated person to exercise their powers and perform their duties and functions under this section, including by providing explanations respecting its organization, information technology systems, data handling and business activities; and
(b) provide any documents or information, and access to any data, that are reasonably required for that purpose.
Confidential information
(4) The rules in section 55 respecting the designation and disclosure of information apply in respect of any information contained in a record, report, electronic data or other document that is provided to the designated person as if that person were a member of the Commission exercising the powers of the Commission.
Statutory Instruments Act
(5) The Statutory Instruments Act does not apply in respect of an order made under subsection (1).
News Businesses
Contravention — eligible news business
59 (1) If an eligible news business contravenes a provision of this Act, a provision of the regulations or an order made under this Act, the Commission may, by order,
(a) impose any conditions on the business that are designed to further its compliance with this Act, including conditions respecting its participation in the bargaining process set out in sections 18 to 44;
(b) suspend, for the period the Commission specifies, the order designating the business as eligible; or
(c) revoke the order designating the business as eligible.
Contravention — group of eligible news businesses
(2) If a group of eligible news businesses contravenes a provision of this Act, a provision of the regulations or an order made under this Act, the Commission may, by order, impose any conditions designed to further the compliance of the group and its members with this Act, including restrictions on its participation in the bargaining process set out in sections 18 to 44.
Contravention — directors, officers, etc.
(3) For the purposes of subsections (1) and (2), the contravention of a provision of this Act, a provision of the regulations or an order made under this Act by an eligible news business or group of eligible news businesses includes such a contravention by its director, officer, employee or agent or mandatary.
Statutory Instruments Act
(4) The Statutory Instruments Act does not apply to an order made under subsection (1) or (2).
Administrative Monetary Penalties
Violation — operators, directors, etc.
60 (1) Subject to any regulations made under paragraph 76(a), an operator or a director, officer, employee or agent or mandatary of an operator commits a violation if they
(a) contravene a provision of this Act, a provision of the regulations, an order made under this Act or an undertaking that they entered into under section 65; or
(b) make a misrepresentation of a material fact or an intentional omission to state a material fact to a person designated under section 57 or paragraph 63(a).
Violation — other individuals and entities
(2) An individual or entity commits a violation if they contravene subsection 7(2).
Continued violation
(3) A violation that is continued on more than one day constitutes a separate violation in respect of each day on which it is continued.
Maximum amount of penalty
61 (1) Subject to any regulations made under paragraph 76(b), an individual or entity that commits a violation is liable to an administrative monetary penalty
(a) in the case of an individual, of not more than $25,000 for a first violation and of not more than $50,000 for each subsequent violation; or
(b) in the case of an entity, of not more than $10 million for a first violation and of not more than $15 million for each subsequent violation.
Criteria for penalty
(2) The amount of the penalty is to be determined by taking into account
(a) the nature and scope of the violation;
(b) the history of compliance with this Act, the regulations and orders made under this Act by the individual or entity that committed the violation;
(c) the history of the individual or entity with respect to any previous undertaking entered into under section 65;
(d) any benefit that the individual or entity obtained from the commission of the violation;
(e) the ability of the individual or entity to pay the penalty;
(f) any factors established by regulations made under paragraph 76(c);
(g) the purpose of the penalty; and
(h) any other relevant factor.
Purpose of penalty
(3) The purpose of the penalty is to promote compliance with this Act and not to punish.
Procedures
62 (1) Despite subsection 64(1), the Commission may impose a penalty in a decision made in the course of a proceeding before it under this Act, including a proceeding in respect of a complaint made under section 52, in which it finds that a violation referred to in section 60 has been committed by an individual or entity other than the individual or entity that entered into an undertaking under section 65 in connection with the same act or omission giving rise to the violation.
For greater certainty
(2) For greater certainty, the Commission is not to impose a penalty under subsection (1) on an individual or entity that has not been given the opportunity to be heard.
Designation
63 The Commission may
(a) designate persons or classes of persons who are authorized to issue notices of violation or to accept an undertaking under section 65; and
(b) establish, in respect of each violation, a short-form description to be used in notices of violation.
Notice of violation
64 (1) A person who is authorized to issue notices of violation may, if they believe on reasonable grounds that an individual or entity has committed a violation, other than a violation in respect of a contravention of section 51, issue a notice of violation and cause it to be served on that individual or entity.
Contents
(2) The notice of violation must set out
(a) the name of the individual or entity that is believed to have committed the violation;
(b) the act or omission giving rise to the violation, as well as a reference to the provision that is at issue;
(c) the penalty that the individual or entity is liable to pay, as well as the time and manner in which the individual or entity may pay the penalty;
(d) a statement informing the individual or entity that they may pay the penalty or make representations to the Commission with respect to the violation and the penalty and informing them of the time and manner for making representations; and
(e) a statement informing the individual or entity that, if they do not pay the penalty or make representations in accordance with the notice, they will be deemed to have committed the violation and the penalty may be imposed.
Undertaking
65 (1) An individual or entity may enter into an undertaking at any time. The undertaking is valid on its acceptance by the Commission or the person designated to accept an undertaking.
Requirements
(2) An undertaking
(a) must set out every act or omission that is covered by the undertaking;
(b) must set out every provision that is at issue;
(c) may contain any conditions that the Commission or the person designated to accept the undertaking considers appropriate; and
(d) may include a requirement to pay a specified amount.
No service of notice of violation
(3) If an individual or entity enters into an undertaking, a notice of violation must not be served on them in connection with any act or omission referred to in the undertaking.
Undertaking after service of notice of violation
(4) If an individual or entity enters into an undertaking after a notice of violation is served on them, the proceeding that is commenced by the notice is ended in respect of that individual or entity in connection with any act or omission referred to in the undertaking.
Payment of penalty
66 (1) If an individual or entity that is served with a notice of violation pays the penalty set out in the notice, they are deemed to have committed the violation and the proceedings in respect of it are ended.
Representations to Commission and decision
(2) If an individual or entity that is served with a notice of violation makes representations in accordance with the notice, the Commission must decide, on a balance of probabilities, after considering any other representations that it considers appropriate, whether the individual or entity committed the violation. If the Commission decides that the individual or entity committed the violation, it may
(a) impose the penalty set out in the notice, a lesser penalty or no penalty; and
(b) suspend payment of the penalty subject to any conditions that the Commission considers necessary to ensure compliance with this Act.
Penalty
(3) If an individual or entity that is served with a notice of violation neither pays the penalty nor makes representations in accordance with the notice, the individual or entity is deemed to have committed the violation and the Commission may impose the penalty.
Copy of decision
(4) The Commission must cause a copy of any decision made under subsection (2) or (3) to be issued and served on the individual or entity.
Evidence
67 In a proceeding in respect of a violation, a notice purporting to be served under subsection 64(1) or a copy of a decision purporting to be served under subsection 66(4) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.
Burden of proof
68 In a proceeding in respect of a violation in respect of a contravention of section 51, the burden of establishing that any discrimination is not unjust or that any preference or disadvantage is not undue or unreasonable is on the individual or entity that is believed to have contravened that section.
Defence
69 (1) An individual or entity is not to be found liable for a violation, other than a violation in respect of a contravention of section 22, if they establish that they exercised due diligence to prevent its commission.
Common law principles
(2) Every rule and principle of the common law that makes any circumstance a justification or excuse in relation to a charge for an offence applies in respect of a violation to the extent that it is not inconsistent with this Act.
Directors, officers, etc.
70 A director, officer or agent or mandatary of an entity that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the entity is proceeded against.
Vicarious liability
71 An individual or entity is liable for a violation that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee or agent or mandatary is identified or proceeded against.
Limitation or prescription period
72 (1) Proceedings in respect of a violation may be instituted within, but not after, three years after the day on which the subject matter of the proceedings became known to the Commission.
Certificate
(2) A document that appears to have been issued by the secretary to the Commission, certifying the day on which the subject matter of any proceedings became known to the Commission, is admissible in evidence without proof of the signature or official character of the person who appears to have signed the document and is, in the absence of evidence to the contrary, proof of the matter asserted in it.
Information made public
73 The Commission must make public
(a) the name of an individual or entity that enters into an undertaking under section 65, the nature of the undertaking, including the acts or omissions and provisions at issue, the conditions included in the undertaking and the amount payable under it, if any; and
(b) the name of an individual or entity that is deemed, or is found by the Commission, to have committed a violation, the acts or omissions and provisions at issue and the amount of the penalty imposed, if any.
Receiver General
74 A penalty paid or recovered in relation to a violation is payable to the Receiver General.
Debt due to Her Majesty
75 (1) The following amounts are debts due to Her Majesty in right of Canada that may be recovered in any court of competent jurisdiction:
(a) the amount of the penalty imposed by the Commission in a decision made in the course of a proceeding before it under this Act in which it finds that a violation referred to in section 60 has been committed;
(b) the amount payable under an undertaking entered into under section 65, beginning on the day specified in the undertaking or, if no day is specified, beginning on the day on which the undertaking is accepted;
(c) the amount of the penalty set out in a notice of violation, beginning on the day on which it is required to be paid in accordance with the notice, unless representations are made in accordance with the notice;
(d) if representations are made, either the amount of the penalty that is imposed by the Commission, beginning on the day specified by the Commission or, if no day is specified, beginning on the day on which the decision is made; and
(e) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (d).
Limitation or prescription period
(2) Proceedings to recover a debt may be instituted within, but not after, three years after the day on which the debt becomes payable.
Certificate of default
(3) The Commission may issue a certificate for the unpaid amount of any debt referred to in subsection (1).
Effect of registration
(4) Registration of a certificate in any court of competent jurisdiction has the same effect as a judgment of that court for a debt of the amount set out in the certificate and all related registration costs.
Regulations
76 The Governor in Council may make regulations
(a) providing for exceptions to paragraph 60(1)(a) or (b);
(b) increasing the penalty amounts set out in subsection 61(1);
(c) for the purpose of paragraph 61(2)(f), establishing other factors to be considered in determining the amount of the penalty;
(d) respecting undertakings referred to in section 65;
(e) respecting the service of documents required or authorized to be served under sections 60 to 75, including the manner and proof of service and the circumstances under which documents are to be considered to be served; and
(f) generally, for carrying out the purposes and provisions of sections 60 to 75.
Other Provisions
Judicial powers
77 In a proceeding under this Act, the Commission has the powers of a superior court with respect to the attendance and examination of witnesses and the production and examination of documents or things.
Sections 126 and 127 of Criminal Code
78 Sections 126 and 127 of the Criminal Code do not apply in respect of any contravention of a provision of this Act, a provision of the regulations or an order made under this Act.
Financial Provisions
Fees for services
79 (1) The Commission may make regulations respecting fees to be paid for the provision of services — including dealing with a complaint or providing regulatory processes — under this Act, including regulations
(a) fixing those fees or setting out the manner of calculating them;
(b) establishing classes of operators and of news businesses and groups of news businesses for the purposes of paragraph (a);
(c) respecting the payment of those fees, including the time and manner of payment; and
(d) respecting the interest payable in respect of overdue fees.
Commission assistance
(2) For greater certainty, subsection (1) permits the making of regulations respecting the recovery of the Commission’s costs for providing assistance to an arbitration panel under section 36.
Amount not to exceed cost
(3) Fees that are payable under regulations made under subsection (1) must not in the aggregate exceed the costs that the Commission determines to be attributable to providing the service.
Criteria
(4) Regulations made under subsection (1) may provide for fees to be calculated by reference to any criteria that the Commission considers appropriate, including
(a) the revenues of the operator, the news business or the group of news businesses; or
(b) the market served by the operator’s digital news intermediary or by the news outlets operated by the news business or by the members of the group of news businesses.
Costs apportioned by Commission
80 (1) The Commission may, by order, apportion the costs related to the bargaining process, other than those related to final offer arbitration, including fees payable under regulations made under subsection 79(1), between the parties, if the parties cannot agree, within a period that the Commission considers reasonable, on how to share the costs.
Factors
(2) In making an order, the Commission must take into account each party’s ability to pay, their conduct during bargaining and mediation sessions and any other factor that it considers appropriate.
Statutory Instruments Act
(3) For greater certainty, the Statutory Instruments Act does not apply in respect of an order made under subsection (1).
Cost recovery
81 (1) With the approval of the Treasury Board, the Commission may make regulations respecting the charges payable by operators in respect of the recovery, in whole or in part, of costs that are incurred in relation to the administration of this Act, including regulations
(a) setting out the manner of calculating those charges;
(b) providing for the establishment of classes of operators for the purposes of paragraph (a);
(c) providing for the payment of any charge payable, including the time and manner of payment; and
(d) respecting the interest payable in respect of any overdue charge.
Amount not to exceed cost
(2) Charges payable under regulations made under subsection (1) must not exceed the costs that the Commission determines to be attributable to exercising its powers and carrying out its duties and functions under this Act and that are not recovered under regulations made under subsection 79(1).
Criteria
(3) Regulations made under subsection (1) may provide for charges to be calculated by reference to any criteria that the Commission considers appropriate, including
(a) the revenues of the operator; or
(b) the market served by the operator’s digital news intermediary.
Debt due to Her Majesty
82 (1) Fees and charges payable under regulations made under subsections 79(1) and 81(1), and any interest on them, constitute a debt due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.
Deduction, set-off and compensation
(2) Debts due to Her Majesty in right of Canada under regulations made under subsections 79(1) and 81(1) maybe recovered at any time by way of deduction from, set-off against or compensation against any sum of money that may be due or payable by Her Majesty in right of Canada to the individual or entity responsible for the debt.
Spending
83 Subject to any conditions imposed by the Treasury Board, the Commission may spend revenues that are received under regulations made under subsections 79(1) and 81(1) for the purposes of exercising its powers and carrying out its duties and functions under this Act. If the Commission spends the revenues, it must do so in the fiscal year in which they are received or, unless an appropriation Act provides otherwise, in the next fiscal year.
Regulations
Regulations — Governor in Council
84 The Governor in Council may make regulations
(a) respecting the factors set out in section 6;
(b) respecting the time at which or the period within which an operator must notify the Commission under subsection 7(1);
(c) respecting how the Commission is to interpret subparagraphs 11(1)(a)(i) to (vi);
(d) setting out conditions for the purposes of paragraph 11(1)(b);
(e) setting out conditions in respect of the Canadian Broadcasting Corporation for the purposes of section 28; and
(f) setting out conditions in respect of a provincial public broadcaster for the purposes of section 28, if the provincial minister responsible for that broadcaster has made a request to the Minister.
Regulations — Commission
85 The Commission may make regulations
(a) respecting requests for orders referred to in subsection 11(1);
(b) respecting the bargaining process set out in sections 18 to 44;
(c) respecting requests for designations referred to in subsection 27(1);
(d) establishing the code of conduct referred to in section 49;
(e) respecting complaints referred to in section 52;
(f) respecting the manner in which groups of eligible news businesses are to be structured and the manner in which they are to exercise their rights or privileges and carry out their obligations under this Act;
(g) respecting the provision of information by groups of eligible news businesses to the Commission respecting their structure;
(h) respecting the exercise by any person appointed under section 8 of the Canadian Radio-television and Telecommunications Commission Act of any of the powers — other than the power to make regulations — or the carrying out of any of the duties or functions, of the Commission under this Act; and
(i) respecting the Commission’s practices and procedures in relation to this Act.
Independent Review
Annual report — independent auditor
86 (1) The Commission must cause an independent auditor to prepare an annual auditor’s report in respect of the impact of this Act on the Canadian digital news marketplace.
Contents
(2) The report must set out an analysis of the impact of the agreements entered into under this Act on the Canadian digital news marketplace and include the following:
(a) information relating to the total commercial value of the agreements entered into under this Act;
(b) information relating to the distribution of the commercial value of those agreements among eligible news businesses, including relative to the expenditures of those businesses on their newsrooms;
(c) information relating to the effect of the agreements on those expenditures; and
(d) any other element that, in the opinion of the auditor, supports the transparency of the impact of this Act on the Canadian digital news marketplace.
Review of Act
Review
87 Before the fifth anniversary of the day on which this section comes into force, the Minister must cause a review of this Act and its operation to be conducted and cause a report on the review to be laid before each House of Parliament.
Related Amendments
R.S., c. A-1
Access to Information Act
88 Schedule II to the Access to Information Act is amended by adding, in alphabetical order, a reference to
Online News Act
Loi sur les nouvelles en ligne
End of inserted blockand a corresponding reference to “subsections 55(2) and 58(4)”.
R.S., c. C-22
Canadian Radio-television and Telecommunications Commission Act
89 Section 12 of the Canadian Radio-television and Telecommunications Commission Act is amended by adding the following after subsection (1):
Digital news
Start of inserted block(1.1) The Commission exercises the powers and performs the duties and functions conferred on it under the Online News Act.
End of inserted block90 Section 13 of the Act is amended by adding the following after subsection (1):
Online News Act
Start of inserted block(1.1) The report must include the contents of the annual auditor’s report prepared under section 86 of the Online News Act.
End of inserted block1991, c. 11
Broadcasting Act
91 Section 4 of the Broadcasting Act is amended by adding the following after subsection (4):
Operators of digital news intermediaries
Start of inserted block(5) For greater certainty, this Act does not apply to the operator of a digital news intermediary in respect of which the Online News Act applies when the operator acts solely in that capacity. In this subsection, digital news intermediary and operator have the same meanings as in subsection 2(1) of that Act.
End of inserted block1993, c. 38
Telecommunications Act
92 The Telecommunications Act is amended by adding the following after section 4:
Digital news intermediaries excluded
Start of inserted block4.1 (1) This Act does not apply in respect of the making available of news content on or by a digital news intermediary in respect of which the Online News Act applies.
End of inserted blockDefinitions
Start of inserted block(2) In this section, digital news intermediary and news content have the same meanings as in subsection 2(1) of the Online News Act.
End of inserted blockInterpretation
Start of inserted block(3) For the purposes of this section, 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.
End of inserted block
Coming into Force
Order in council
93 The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
Published under authorit