Unifor comments on Regulations Respecting the Application of the Online News Act...
Unifor comments on Regulations Respecting the Application of the Online News Act
Re: Canada Gazette, Part I, Volume 157, Number 35: Regulations Respecting the Application of the Online News Act, the Duty to Notify and the Request for Exemptions
SUBMITTED VIA WEB FORM AND EMAIL
October 2, 2023
Randy Kitt, Director
Unifor Media Sector
October 2, 2023
SUBMITTED VIA WEB FORM AND EMAIL
Director General, Digital and Creative Marketplace Frameworks
Department of Canadian Heritage
25 Eddy Street
Gatineau, Quebec, J8X 4B5
RE: Unifor comments on Canada Gazette, Part I, Volume 157, Number 35: Regulations Respecting the Application of the Online News Act, the Duty to Notify and the Request for Exemptions
Dear Ms. Awad,
Thank you for the opportunity to provide comment on the regulations pertaining to the Online News Act, as laid out in the Canada Gazette, Part I, Volume 157, Number 35: Regulations Respecting the Application of the Online News Act, the Duty to Notify and the Request for Exemptions.
Unifor is Canada’s largest private sector union, with more than 315,000 members across Canada working in 20 economic sectors. Unifor is one of Canada's largest unions in the media sector, representing more than 10,000 media workers, including 5,000 members in the broadcast and film industries.
Our members working in newspapers and digital news publishing work at some of the largest national and provincial dailies, including the Globe and Mail, Toronto Star, National Post, London Free Press, the Toronto Sun, the Vancouver Sun and The Province, the Winnipeg Free Press, Brandon Sun, Thunder Bay Chronicle, Lethbridge Herald, the Winnipeg Sun, and the Hamilton Spectator. Our employers include national media companies like Torstar and Postmedia, as well as regional enterprises like Black Press and Continental.
Unifor broadcast members work for radio and television stations serving local communities as well as national discretionary pay and specialty services, and distribution services that include cable, satellite and wireless telephony.
Unifor broadcast members are employed by large, private Canadian broadcasters and distributors, including Corus (e.g. Global), as well as Canada's largest Vertically Integrated (VI) firms: Rogers (e.g. City and OMNI stations) and Bell Media (e.g. CTV). In addition, Unifor members work for independently-owned and locally-based television stations (such as CHCH TV in Hamilton, Ontario and CHEK in Victoria, BC) as well as public television stations (e.g. TV Ontario).
Unifor supports the goals of the Online News Act in principle, and we have participated as engaged stakeholders at every stage as the legislation was developed and finalized. Fundamentally speaking, we believe that digital platforms should pay for the Canadian-made news content that is shared across their platforms.
The principles of transparency, accountability, and inclusion
Unifor respectfully maintains that the government should approach the regulations attached to the Online News Act with a set of three basic principles:
· In order for the regulations to be effective and fair, it is critical that deals made between the digital platforms and domestic newsmakers be transparent and publicly disclosed.
· The basic terms of all funding agreements and arbitrated settlements must be disclosed to regulators and the public. This transparency will allow for fairer and more effective negotiations between the parties, and will preserve and promote public trust in the overall funding program and the Act itself.
· In addition, the eligibility requirements for Canadian news outlets, the application process for those outlets, and the entire process that oversees the distribution of funds must be transparent and independent.
· This need for transparency and independence is highlighted in a recent blog post from the Public Policy Forum. “At the very least, programs must be designed to ensure any touch by the government is as light and as brief as possible. That means transparent formulas, arm’s length governance and no ongoing discretion over policies or money.”
· Funding distributed to Canadian news outlets must be earmarked specifically for local news creation. Clear reporting will ensure that the legislation meets its objectives of serving the pubic interest by funding the creation of local news.
· The regulations must include language that requires Canadian news outlets to use most or all of the new funding directly on local news creation, as opposed to debt payments, executive compensation and bonuses, or stock buybacks.
· The new funding stream delivered through the Online News Act should be used to fund the creation of local news in a variety of formats, and eligibility should be platform agnostic.
· News outlets should be eligible (with conditions) based on QCJO criteria, whether they are: print, online or broadcast; mainstream or independent; large-scale or small; and, private or public.
With these basic principles in mind, Unifor would like to provide the following comments on specific sections of the “Regulatory Impact Analysis Statement” and the “Regulations Respecting the Application of the Online News Act, the Duty to Notify and the Request for Exemptions,” as per the Canada Gazette, Part I, Volume 157, Number 35.
Collectives and the challenge of finding a “dance partner”
In the “Regulatory Impact Analysis Statement” section, under the sub-heading “Background,” Unifor would like to comment on the following section:
The Act allows news businesses to bargain collectively and defines the powers, duties, and functions of the CRTC as the regulator in the process.
The Act itself, and the analysis and draft regulations upon which we are commenting, mention the ability of news businesses to bargain collectively, a process Unifor supports. However, this feature requires news businesses to find a number of willing “dance partners,” a process that might have the unintended effect of excluding some news outlets from access to the compensation that would come with entering into an agreement.
Unifor can envision a situation where some newsmakers might be unable to find a collective that will include them. In these cases, newsmakers should have the ability to appeal to an independent body that has the authority to constitute collectives and grant them eligibility under the Act. Unifor respectfully recommends that the federal government look to the Qualified Canadian Journalism Organization (QCJO) designation, and the Independent Advisory Board on Eligibility for Journalism Tax Measures, which provides an independent assessment and makes written, non-binding recommendations regarding QCJO eligibility.
Unifor recommends that, in situations where QCJO-eligible news businesses are unable to form or join a collective due to extenuating circumstances, those businesses could appeal to the Independent Advisory Board on Eligibility for Journalism Tax Measures, which would be given the authority to constitute collectives, allowing the news businesses to enter agreements with the platforms.
The problem with a “portion” and “some or all”
In the “Description” section, under the sub-heading “Exemption of platforms from mandatory bargaining and final offer arbitration,” Unifor would like to comment on the following section:
Supporting news: The proposed criteria would require agreements to include a commitment from news businesses to use a portion of the compensation received from an agreement to produce news content. The intention is to ensure news businesses are using compensation to invest in Canadian newsrooms.
Referring back to the basic principle of accountability mentioned above, Unifor respectfully submits that a “portion” is not a strong enough phrase. Technically, $1 is a “portion” of a multi-million dollar amount of revenue, and we know the federal government wants the Online News Act to deliver more funding than that to Canadian news outlets.
The regulations must ensure that news businesses use most or all of the compensation received from an agreement to produce news content. It would undermine the intent of the Act if news businesses used most of the new compensation for debt payments, executive compensation and bonuses, or stock buybacks.
At this time, Unifor is not prepared to suggest a fixed portion or percentage of the compensation received from an agreement that should be earmarked for produce news content, and we can allow a certain amount of flexibility for the new funding program. However, we do believe the news businesses’ distribution of funds that flow from these agreements should pass a basic reasonableness test, and most or all of the compensation received from an agreement should be put towards producing news content.
Unifor respectfully recommends amending the above passage so it now reads:
Supporting news: The proposed criteria would require agreements to include a commitment from news businesses to use a portion most or all of the compensation received from an agreement to produce news content. The intention is to ensure news businesses are using compensation to invest in Canadian newsrooms.
Unifor also respectfully recommends that any reference to news businesses using a “portion” or “some or all” of the compensation received from an agreement to produce news content be amended to read, “most or all.”
While we acknowledge this requirement lacks the specificity of using an exact percentage of compensation that must be earmarked for the creation of news content, we believe we acknowledge a certain amount of flexibility should be built into the regulations based on the particular context and situation of each eligible new business. Unifor respectfully suggests a basic reasonableness test would be adequate to ensure news businesses are streaming the appropriate amount (i.e. “most or all”) of new compensation toward the production of news content.
Establishing a fair contribution rate for platforms
In the “Description” section, under the sub-heading “Contribution rate,” Unifor would like to comment on the following section:
· The proposed contribution rate is aligned with contribution rates used in other sectors. For example, the CRTC has imposed licensing conditions requiring financial contributions of up to 5% to support the creation of Canadian content in the broadcasting context.
· A contribution rate of 4% would yield compensation figures broadly consistent with the outcomes from the Australian Bargaining Code, which is the model for the Online News Act.
Unifor respectfully recommends that the contribution rate should be set at 7%. We would turn your attention to our intervention for the CRTC’s “BNOC 2023-138-1 - The Path Forward – Working towards a modernized regulatory framework regarding contributions to support Canadian and Indigenous content.” In that submission, we argue that the Canadian content creation and production contribution connected to the Online Streaming Act should be increased to from 5% to 7%, since the 5% amount was already not adequately supporting the creation and production of local programming, and especially local news.
The siphoning of advertising revenue by online digital platforms like Facebook and Google is a well-document phenomenon, and the financial model that previously supported Canadian newsmakers has been in its death throes for more than a decade. These news outlets are already in state of financial crisis, thousands of journalists have lost their jobs, and Canadians have lost access to vital local news. Unifor respectfully argues that the contribution rate for the Online News Act should re-balance the scale, acknowledging that historical crisis, while also setting a fair funding model for the future.
Therefore, Unifor recommends that the above section be amended so it now reads:
· The proposed contribution rate should re-balance the scale, acknowledging the historical crisis faced by Canadian news businesses, while also setting a fair funding model for the future.
· A contribution rate of 7% would yield compensation figures that would help support Canadian journalists and media workers, as well as Canadian news businesses, in the production of high-quality, professional local, regional and national news.
In addition, Unifor would like to comment specifically on Facebook’s d
ecision to throttle the sharing of Canadian news on its platform in this country. Numerous media reports have explored Facebook’s decision to de-prioritize news in recent years, with some going so far as to postulate that the company plans to shift away from news content altogether.
In fact, in a September 5 blog post, the company announced it plan to, “deprecate” (i.e. eliminate) Facebook News, its dedicated tab for news content, in the UK, France and Germany. In that same blog post, Meta said, “We know that people don’t come to Facebook for news and political content – they come to connect with people and discover new opportunities, passions and interests.”
As noted by the Public Policy Forum’s Edward Greenspon, “Facebook has never been a reliable news industry partner. At times, it has embraced news. At other times, it has rewritten its algorithm with zero notice and decimated the traffic of its so-called news partners.”
While Meta/Facebook is playing a high stakes game of chicken with the federal government over the Online News Act, Unifor would like to raise the possibility that the company plans on moving out of the news sharing business altogether, and is using these negotiations as a smoke screen for that plan. We respectfully encourage the federal government to stand up against these kinds of bully tactics.
Concern with using the concept of FTEs
In the section titled, “Regulations Respecting the Application of the Online News Act, the Duty to Notify and the Request for Exemptions,” under the sub-heading “Interpretation — fair compensation,” Unifor would like to comment on the following section:
Definition of relative compensation
(2) For the purposes of subsection (1), relative compensation means the ratio of compensation relative to the number of full-time equivalent journalists paid by a news business or group of news businesses, as the case may be, in the previous calendar year.
Unifor is concerned with the use of the concept of “full-time equivalents” (FTEs) in the regulations. In the union’s experience, FTEs are sometimes used to manipulate labour market data, giving the appearance of more stable jobs among a workforce that actually consists of a large number of part-time, casual, temporary or contract workers.
One of the main goals of the union is to fight for stable, permanent, full-time jobs with fair pay, decent benefits, and safe workplaces. We respectfully encourage the federal government to develop a definition of relative compensation based on the per capita of total journalists’ payroll, which we believe would come closer to supporting full-time, permanent, non-precarious jobs than using FTE’s would.
The Online News Act represents an incredible opportunity to update and improve Canadian media policy, especially regarding the support and promotion of local news and programming.
Fundamentally speaking, we believe that digital platforms should pay for the Canadian-made news content that is shared across their platforms. The regulations connected to the Online News Act must be based on the principles of transparency, accountability, and inclusivity. Further, the regulations should be platform agnostic. News outlets should be eligible whether they are: print, online or broadcast; mainstream or independent; large-scale or small; and, private or public.
Unifor is available if you have further questions or seek additional comments.
Thank you again for the opportunity to comment on this important matter.
Media Director, Unifor
115 Gordon Baker Road, Toronto, ON, M2H 0A8
Phone: (416) 718-8427