E-commerce law expert reacts to calls for an investigation into Meta’s news blocking

The Canadian Association of Broadcasters, which includes CTV News, News Media Canada and the CBC, is calling on the Competition Bureau to investigate and stop Meta from blocking news on Facebook and Instagram. The block is Meta’s response to Bill C-18, a law that requires Meta and Google to pay publishers for content they link to, or repurpose online. 

The broadcasters say the move is “anti-competitive” and “an abuse of its dominant position.”

CTV News Kitchener interviewed Michael Geist, the Canada research chair in internet and e-commerce law at the University of Ottawa. 

YOU'RE CALLING THIS LATEST STEP BY BROADCASTERS A “FLAWED APPLICATION.” WHY IS THAT?

"I think it’s flawed in several respects, not the least of which is that it's not clear that the market that Facebook operates in has very much to do with market of news and the way that these other players do. In fact, the companies and organizations that you cited claim that somehow Meta has a significant control over the entire news industry in Canada, which frankly strikes me as absurd. We're talking, at the end of the day, about links. Facebook is not even the number one referral source of links to these news entities, and about a quarter of Canadians say they get their news through some of these Facebook links. And so the notion that somehow they've got significant control over the industry just doesn't pass the smell test."

WHAT SHOULD NEWS ORGANIZATIONS HAVE DONE INSTEAD?

“The starting point is that this legislation is flawed, not just the claim is flawed. And that's because it is the foundation of it is based on mandated payments for links. Those links are often posted by the publishers themselves, and so they're the ones posting links on Instagram or Facebook. Facebook or Instagram are now sending the traffic back to the original publishers who benefit from ad revenue or potential subscribers. And so I don't think it's that we couldn't look to ensure that the large platforms pay their fair share, but this isn’t about reproducing content. It's just about linking to it, and it's quite clear, even from this application, that there's enormous benefits that accrue to the media sector for all of those free links. And so I think fundamentally, we need less needed legislation that didn't start from this deeply flawed premise of mandated payments.”

SO WOULD THE MORE EFFECTIVE FIGHT THAN BE AGAINST THE GOVERNMENT AND BILL C-18?

“Well, I think there's no question that at the end of the day it's the government that's responsible for this. They were warned really from day one that if the approach was a mandated payments for links approach, one in which – if you did link and you were either Google or Facebook, and required to enter into negotiations for payment for those links, or if you didn't link, you would fall outside of the legislation. They were warned from day one. It was likely [if] those companies would take the second choice, they would simply stop linking. They didn't take it particularly seriously. They didn't have a plan B. And to be fair, I think they were egged on by some of the lobby groups who thought for whatever reason that Facebook had no choice but to include Canadian news. That it was just so valuable that they wouldn't walk away. It was a bad bet back. The fact there wasn't a Plan B I think rests primarily with the government for not recognizing the risks. And now we find ourselves in a real mess because it's clear the company was serious. The harm to media, to Canadians, is going to run into the hundreds of millions of dollars. And frankly, it was all avoidable.”

IT SEEMS LIKE BOTH META AND THE FEDERAL GOVERNMENT ARE DIGGING THEIR HEELS IN, BUT THE THIRD PARTY, STUCK IN THE MIDDLE, THE NEWS ORGANIZATIONS, ARE THE ONES FEELING THE IMPACT HERE. SO, WHAT IS THE BEST COURSE OF ACTION FOR NEWS ORGANIZATIONS TO DO? WHAT CAN THEY DO TO EITHER LOBBY THE GOVERNMENT OR GET META TO CHANGE ITS MIND?

“First, we should be clear that some of the organizations that have launched today's claim are not innocent bystanders. They were active lobbyists for this legislation, knowing that these were the potential consequences. And they, too, didn't take it particularly serious. But, you're right, media and Canadians, more generally, find themselves stuck in the middle on this. And given that Meta has been clear, really from day one, that a system based on mandated payments for links was something that they would not be on side with.

I think it really ultimately failed to find alternative approaches to ensure that they do pay their fair share. I think ensuring that they pay their fair share of tax would be the best way to try to go about doing this. But there were alternatives. And I think at the end of the day, if media feels that linking from Facebook, linking from Instagram, is essential – then it needs to recognize that this legislative framework is standing in the way of that. And that it would be far better to pursue alternative ways to provide support. And that ultimately means going to the government and saying, ‘we need to find a way out. This was a major error on our part. On the government's park. Let's find a way to fix this.’”

WHERE DO YOU SEE THIS BATTLE GOING NEXT?

“Well, I think in many ways the battle with Facebook and Meta is over. I think it's quite clear they're walking away from news. News is not particularly valuable to the company. It doesn't mean it doesn't have value, but it's not valuable to that social network. And so in some ways, I think that battle is lost. The next big one is Google, which still hasn't made a clear determination as to whether or not it feels it can comply with the legislation or whether it too will stop blocking news links, and if it does, the repercussions will be very, very significant. And so I don't think it's too late to say, 'you know what, there's been a big error with this legislation.' It's not about talking tough to the tech companies. It's about finding a mechanism that does a better job of addressing the realities of the internet, the needs of Canadians and the needs of the news organizations who, as you say, oftentimes find themselves stuck in the middle.”