Money for nothing | Bruce McDougall

By Bruce McDougall

Law360 Canada (October 16, 2023, 10:10 AM EDT) --
Bruce McDougall
Bruce McDougall
What has come over us in Canada?

How have we convinced ourselves that technology companies like Google and Meta pose such a threat to humanity that we have to put them into a regulatory straitjacket; that every word that these companies issue from their corrupt hearts is suspect; and that money that we willingly spend to take advantage of their revolutionary technological advances must be clawed back in the form of taxes, penalties, mandatory payments and fines?

These companies behave far more responsibly than the governments that seek to regulate them and seem to have much better control of their systems. In Ontario for example, the government’s birth registry suffered a data breach that exposed confidential health-care information about 3.4 million adults and more than two million babies who sought pregnancy care over the last 10 years. In other countries that seem comparably intent on harassing social media organizations, governments have suffered similar humiliations. In the U.K., for example, police services inadvertently released private information about the victims of domestic abuse as well as the name, rank and address of officers serving in Northern Ireland, and the names and addresses of all eligible voters in the country. When did Meta ever suffer a similarly privacy-invasive data breach?

Even the courts in Canada seem to regard technology companies with suspicion. With all due respect to the Federal Court of Appeal, for example, its recent decision to disallow Google’s exemption from the Personal Information Protection and Electronic Documents Act (PIPEDA) as a source of journalistic information seems misguided (Google LLC v. Canada (Privacy Commissioner) [2023] F.C.J. No. 1411). The court heard an appeal by Google against a lower-court decision to allow an individual to edit information about him available through Google’s search engine. The individual wanted Google to remove the offensive information, presumably so that no one would find out that he’d been such a dickhead when he was younger. But as Justice Wyman Webb noted in his dissenting opinion, the same information is already in the public domain and accessible to anyone who visits the publishers’ websites. Google simply collects and discloses the information. So why should Google or any other search engine have to edit people’s personal history, as recorded in newspaper and magazine articles, so that they can hide their youthful indiscretions from prying eyes? Google is merely a conduit, not the source, for delivering information to its audience.

In reaching this audience, Google also provides a service to the publishers of the information by attracting visitors to their websites. The value of this service to publishers seems far higher than the value of the information to Google. Despite support for Google from publishers themselves, public authorities in Canada have grabbed the wrong end of the technological beast in demanding that Google, Meta and other technology companies pay millions of dollars for this information, “as if,” observes Andrew Coyne in The Globe and Mail, “sending millions of readers our way every day, for free, was somehow a form of theft.” If the authorities had any sense of fairness, they would demand that publishers pay Google and Meta for conveying their information to a far larger audience than they could ever reach on their own.

Instead, the Canadian government, with Bill C-18, is demanding that tech companies pay a minimum of four per cent of their revenues for linking to a publisher’s website. It also gives publishers the capacity to negotiate an even higher rate, backed, of course, by the muscle of the Canadian Radio-television and Telecommunications Commission (CRTC).

To bulk up the flabby organization’s regulatory biceps, the government will give the CRTC an additional $8.5 million. That should provide a healthy income for the rookie bureaucrats who will protect Canadians from the rapacious intentions of the Huns who run Meta and Google.

The government has gone even further to throw regulatory glue into the technological machinery with Bill C-11. That bill, as discussed in a previous article, aims to promote Canadian content on streaming services like Netflix and Amazon Prime. Again, as Coyne points out, “Canadian content is not in need of promotion — the Internet is awash with it ... instantly available to anyone who can type ‘Canada’ into a search field.”

The provisions of Bill C-11 and Bill C-18 will give Canada the dubious distinction of having the most heavily regulated Internet services in the world. And that’s before the CRTC starts sniffing around for harmful content on the Internet, under the forthcoming Online Harms Act, “the most controversial of the government’s three-part Internet regulation plan,” according to professor Michael Geist, an e-commerce specialist at the University of Ottawa.

Under such legislation, social media and streaming services would face the same hostile regulatory regime in Canada, critics say, as they do in China, Iran, and North Korea.

Apart from the legislation itself, observers wonder if the CRTC has the publishing cojones to swagger up to Google and tell it how to run its business. “It’s the absolutely wrong organization to be involved in oversight,” says Peter Menzies, a former vice-chair of the CRTC.

Heritage Minister Pascale St-Onge defends her government’s legislation, saying with questionable authority that “Canadians expect tech giants to pay their fair share for news.”

And the CRTC has defended itself against its critics by pointing to its “strong track record of implementing effective policies and adapting its approaches over time to the evolving market for news in both TV and radio, and with alternative dispute resolution under both the Broadcasting and Telecommunications Acts.”

And if that bureaucratic gobbledygook doesn’t persuade you, another CRTC mouthpiece named Laura Scaffidi explains simply that the CRTC “has served Canadians for over 50 years.”

So there.

Bruce McDougall ( has written for The Globe and Mail, Maclean’s and other Canadian news magazines. He is the author of The Last Hockey Game and Every Minute Is a Suicide. A graduate of Harvard College, he attended the University of Toronto Law School.

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