Google still opposes ‘unworkable’ bargaining process as stakeholders give CRTC Online News Act recommendations

Canadian broadcasters are encouraging the CRTC to make sure the bargaining framework between news businesses and online platforms, mandated by the Online News Act, prioritizes efficiency and regulatory transparency. Last month, the CRTC launched its first public consultation on its new responsibilities, sharing its preliminary views and asking for input on how it should handle the bargaining process, unfair treatment complaints, and data collection requirements. Comments were posted online Monday. Alphabet Inc.’s Google maintained its position that the bargaining process required by the act is “unworkable,” arguing that the final offer arbitration framework is inherently biased against online platforms such as itself. The web giant repeated its calls for dispute resolution to follow standard commercial arbitration rules with expedited timelines, adding that directions to the arbitration panel should be removed. “The entire framework of final offer arbitration results in an unwieldy process that cannot effectively function, is heavily weighted in favour of the news businesses, and does not appropriately account for the value of traffic provided by Digital News Intermediaries (DNIs), nor provides any overall cap on liability…,” said Google. The company was more cooperative in its responses to other questions raised by the CRTC, giving several recommendations around undue preference and data collection rules. Google agreed that the commission should provide guidance on the specific types of “undue preference” prohibited by the regulations, stating that it currently puts online platforms at risk of getting in trouble for standard search engine practices. “‘Undue preference’ is a concept built for traditional broadcast models, not today’s open web,” noted Google. “It creates the risk of liability for the basic function of ranking content and it would impact our ability to elevate authoritative information in Search results…” The CRTC should clarify undue preference requirements to make sure that “ordinary course content ranking decisions are entirely out of scope,” Google said. It would also help ensure parties do not rack up any unnecessary costs to defend against such claims. The company said it supports sharing information about the agreements between parties, including expenditure amounts. To ensure a clear and accurate representation of the act’s efficacy, Google also recommended that news businesses not designated as eligible for compensation be required to indicate the region they serve, the nature of their news content, and the reasons they were not designated as eligible. Broadcasting stakeholders, including the Canadian Association of Broadcasters (CAB), CBC/Radio-Canada, and National Campus and Community Radio Association (NCRA), emphasized efficiency in their separate comments. They urged the CRTC to avoid any chance of delays in the bargaining process. “Given the vital role that news outlets play in maintaining a healthy democracy, the commission should implement the regime as soon as possible,” said the CBC, pointing to a steady decline in news outlets in recent years. “We encourage the commission to adopt timelines that recognize the fragile state of journalism today and the underlying rationale of the act to address an imbalance in bargaining power that has been allowed to persist for far too long – and with ruinous impact,” stated the Crown corporation. Private lobby group CAB shared sentiment with several members who filed their own interventions, including BCE Inc., Rogers Communications Inc., and Quebecor Inc. The group encouraged procedures that allow parties to reach agreements as quickly as possible and steer clear of any “overly rigid administrative procedures.” CAB noted that there is currently no information regarding how news businesses will be designated as eligible by the CRTC, recommending that a simple registration process be created “immediately.” “This is a concern since it is clear that only designated eligible news businesses may initiate bargaining or file an undue preference claim,” the lobby group said. CAB called for the designation process to begin without waiting for the current proceeding to end – or, “at the very least,” that the list of eligible businesses be made public by June 16, when online platforms have to notify the CRTC if the act applies to them. CAB and its members endorsed the CRTC’s preliminary view that commission staff should be the default mediators in the bargaining process. However, if parties agree to third-party mediation quickly, the broadcasters said that they should be allowed to do so. CAB's comments said that deciding on a mediator should be done within the 90-day bargaining period, before the 120-day mediation process begins. However, Rogers broke away from the pack, suggesting instead that parties select a mediator and arbitrator as a prerequisite to negotiations, before bargaining even begins. The NCRA, representing non-profit community, campus, and Indigenous radio stations, discussed the challenges smaller broadcasters face, particularly in terms of resource constraints. The group said it supports mediation processes being led by CRTC staff, in order to minimize costs and complexity, arguing that smaller broadcasters do not have the financial capacity to engage in expensive legal disputes. The NCRA proposed funding be made available through the Broadcast Participation Fund to cover the mediation costs of small and non-profit groups. They stressed the importance of making the regulatory framework accessible and manageable for all broadcasters, regardless of their size, to ensure that they can continue to operate sustainably within the new framework. Comments from the Forum for Research and Policy in Communications (FRPC), while in general agreement, were critical of the CRTC’s preliminary views and called for greater transparency around the regulator’s mediation and arbitration processes. The organization echoed Google’s comments on undue preference requirements and argued that more clarity around the CRTC’s processes will help prevent unnecessary delays that harm smaller parties. “The absence of any objective evidence from the CRTC describing its experience with dispute-resolution processes imposes an undue burden on all participants in this proceeding in terms of evidence about the manner in which the CRTC’s current processes function,” the FRPC argued. The organization highlighted a lack of detailed information that it argued could help all parties, especially smaller entities, understand and navigate the regulatory framework effectively. The CRTC’s deadline for replies in this proceeding is April 22. – Reporting by Phalen Tynes-MacDonald at pcreed@thewirereport.ca

Google still opposes ‘unworkable’ bargaining process as stakeholders give CRTC Online News Act recommendations

News | April 17, 2024

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Google still opposes ‘unworkable’ bargaining process as stakeholders give CRTC Online News Act recommendations

News | April 17, 2024

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