The Online News Notice of Consultation CRTC 2024-55 (the Notice) was recently issued by the Canadian Radio-television and Telecommunications Commission (the CRTC) as the first step in fulfilling its new mandate under the Online News Act (the Act). The Act was passed by Parliament as Bill C-18 and became law in 2023.

Its purpose is to enhance fairness in the Canadian digital news marketplace and contribute to its sustainability by requiring the largest online communications platforms to negotiate for compensation with eligible news businesses in Canada and to reach fair commercial deals for the news content made available by the platforms.

The Act provides a framework for mandatory bargaining between news businesses and online platforms that make news content available and that have not obtained an exemption under the Online News Act Application and Exemption Regulations (the Regulations). It also outlines criteria for determining which news businesses are eligible to participate in the mandatory bargaining process. One aspect of the CRTC's role is to oversee the functioning of that framework, which consists of three stages: (i) negotiation/bargaining sessions, (ii) mediation, and (iii) final offer arbitration (FOA). Among other things, the CRTC is also empowered to:

  • Exempt an online platform that has signed agreements with a broad range of news businesses from the mandatory bargaining process, pursuant to factors established in the Regulations;
  • Consider complaints regarding undue preference/disadvantage; and
  • Collect information for the purpose of carrying out its mandate under that Act.

In the Notice, the CRTC calls for comments on the following three aspects of its new mandate:

  1. Bargaining process – The Notice includes questions related to the implementation of the bargaining framework under the Act, including the 90-day bargaining period, the 120-day mediation period and the scope and procedures of the 45-day FOA period.
  2. Unjust discrimination and undue preference and disadvantage – The Act contains a broadly worded provision, which restricts online platforms that make news content available, from acting in a way that unjustly discriminates against an eligible news business, gives an undue preference to an individual or entity or subjects an eligible news business to an unreasonable disadvantage. The Notice calls for comments on the manner in which it will consider complaints alleging that an online platform unduly discriminates against an eligible news business, gives an undue preference to an individual or entity or subjects an eligible news business to an unreasonable disadvantage.
  3. Data collection requirements – The Notice calls for comments on how the CRTC should gather information relevant to its mandate under the Act and to monitor compliance with the requirements of that Act. Notably, the CRTC states this "could include collecting data even if an online platform has received an exemption from mandatory bargaining".

In total, the Notice contains 27 questions relating to these three areas. In some instances, the CRTC provides its preliminary view as to how the bargaining framework should be implemented. For example, the CRTC expressed the preliminary view that certain notice requirements should apply with respect to the initiation of the 90-day bargaining period, the 120-day mediation period and the 45-day FOA period. It is also the CRTC's preliminary view that mediation should be facilitated by CRTC staff based on existing practices and procedures applied to broadcasting and telecommunications disputes.

In addition to the current proceeding, the CRTC indicated in the Notice that it will initiate a future proceeding to establish a code of conduct governing the bargaining and mediation processes to ensure the parties negotiate in good faith.

Interventions in the CRTC's proceeding are due on 12 April 2024, with a deadline for filing replies of 22 April 2024.

If you have any questions regarding the Notice or the Online News Act, please contact Fasken's Communications Law group or the authors of this bulletin.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.