Online News Act (S.C. 2023, c. 23)

Agreements

Marginal note:Agreement with group

• 32 (1) If a group of eligible news businesses enters into an agreement with an operator as a result of bargaining or mediation sessions under the bargaining process, the group must file a copy of the agreement with the Commission within 15 days after the day on which it is entered into.

• Marginal note:For greater certainty

  (2) For greater certainty, nothing in this Act prevents the agreement from applying to eligible news businesses that join the group after the agreement is entered into if the agreement provides for it.

Final Offer Arbitration

Marginal note:Roster of qualified arbitrators

• 33 (1) The Commission must publish qualifications for arbitrators on its website and must maintain a roster of arbitrators who meet those qualifications.

• Marginal note:Indigenous persons on roster

  (1.1) The Commission must ensure that the roster includes Indigenous persons.

• Marginal note:Proposals

  (2) Parties that are engaging in bargaining or mediation sessions may propose candidates for the roster.

Marginal note:Arbitration panel

• 34 (1) A final offer arbitration must be conducted by a panel that is composed of three arbitrators who

  • (a) are selected by the parties from the roster; or

  • (b) are appointed by the Commission from the roster, if the parties do not select the arbitrators within a period that the Commission considers reasonable.

• Marginal note:Appointment by Commission

  (2) The Commission must take the preferences of the parties into account if it appoints the arbitrators to the panel.

• Marginal note:Status

  (3) An arbitration panel is not a federal board, commission or other tribunal for the purposes of the Federal Courts Act.

Marginal note:Conflicts of interest

• 35 (1) If the Commission is of the opinion that an arbitrator selected by the parties has a conflict of interest, that arbitrator is ineligible to be a panel member and a replacement must be

  • (a) selected by the parties from the roster; or

  • (b) appointed by the Commission from the roster, if the parties do not select the replacement within a period that the Commission considers reasonable.

• Marginal note:Appointment by Commission

  (2) The Commission must not appoint an arbitrator who has a conflict of interest.

Marginal note:Commission assistance

• 36 (1) The Commission may, at the request of an arbitration panel, provide administrative and technical assistance to the panel and may, on any terms that the Commission considers necessary, disclose to the panel any information, including confidential information, in the Commission’s possession that, in the Commission’s opinion, is necessary for a balanced and informed decision-making process, on the condition that the Commission ensures that the arbitration panel or each individual arbitrator that presides over the final offer arbitration does not further disclose any confidential information other than during the arbitration, including by imposing any further terms that the Commission considers necessary.

• Marginal note:Confidentiality

  (2) Each individual arbitrator must take all reasonably necessary measures to ensure that confidential information disclosed to them under subsection (1) is not disclosed other than during the arbitration.

• Marginal note:Offence — confidentiality

  (3) Every individual who contravenes subsection (2) is guilty of an offence and is liable on summary conviction,

  • (a) for a first offence, to a fine of not more than $5,000; and

  • (b) for a second or subsequent offence, to a fine of not more than $10,000.

Marginal note:Decision of arbitration panel

37 The arbitration panel makes its decision by selecting the final offer made by one of the parties.

Marginal note:Factors

38 An arbitration panel must take the following factors into account in making its decision:

• (a) the value added, monetary and otherwise, to the news content in question by each party, as assessed in terms of their investments, expenditures and other actions in relation to that content;

• (b) the benefits, monetary and otherwise, that each party receives from the content being made available by the digital news intermediary in question; and

• (c) the bargaining power imbalance between the news business and the operator of the digital news intermediary in question.

Marginal note:Dismissal of offers

• 39 (1) An arbitration panel must dismiss any offer that, in its opinion,

  • (a) allows a party to exercise undue influence over the amount of compensation to be paid or received;

  • (b) is not in the public interest because the offer would be highly likely to result in serious detriment to the provision of news content to persons in Canada; or

  • (c) is inconsistent with the purposes of enhancing fairness in the Canadian digital news marketplace and contributing to its sustainability.

• Marginal note:Effect of dismissal

  (2) If the arbitration panel dismisses, in accordance with subsection (1), the final offer made by one of the parties, it must accept the final offer made by the other party.

• Marginal note:Reasons and new offers

  (3) If the arbitration panel dismisses, in accordance with subsection (1), the final offer made by each of the parties, it must provide written reasons to the parties and give them an opportunity to make a new offer.

Marginal note:Other submissions

40 An arbitration panel may, in making its decision, seek oral or written submissions from the Commission and from the Commissioner of Competition appointed under subsection 7(1) of the Competition Act.

Marginal note:Decision final

41 An arbitration panel’s decision is final.

Marginal note:Decision deemed to be agreement

42 An arbitration panel’s decision is deemed, for the purposes of its enforceability, to be an agreement entered into by the parties.

Marginal note:Reasons

43 An arbitration panel must provide written reasons for its decision to the parties and the Commission.

Marginal note:Costs

44 The arbitration panel may apportion the costs related to final offer arbitration between the parties, if the parties cannot agree, within a period that the panel considers reasonable, on how to share the costs. In doing so, the panel must take into account each party’s ability to pay, their conduct during the arbitration and any other factor that it considers appropriate.

Civil Remedies

Marginal note:Right of recovery

45 For greater certainty, an eligible news business or group of eligible news businesses may, during the period specified in a covered agreement, collect payments due under it and, if they are not made, recover the payments in a court of competent jurisdiction.

Marginal note:Compliance order

46 For greater certainty, if a provision of a covered agreement is not complied with, a party to the agreement may, in addition to any other remedy available, apply to a court of competent jurisdiction for an order directing compliance with the provision.

Competition Act

Marginal note:Covered agreements

47 Sections 45 and 90.1 of the Competition Act do not apply in respect of

• (a) any activity, including the making of payments or the exchange of information, that is carried out in accordance with a covered agreement between an operator and a group of eligible news businesses;

• (b) any provision of the covered agreement that is related to that activity; or

• (c) any bargaining or mediation session or any final offer arbitration under the bargaining process set out in sections 18 to 44 to which an operator and a group of eligible news businesses are parties.

Marginal note:Other agreements

• 48 (1) Sections 45 and 90.1 of the Competition Act also do not apply in respect of

  • (a) any bargaining activity between an operator and a group of eligible news businesses that is conducted with a view to entering into an agreement;

  • (b) any activity, including the making of payments or the exchange of information, that is carried out in accordance with an agreement; or

  • (c) any provision of an agreement that is related to an activity referred to in paragraph (b).

• Definition of agreement

  (2) In this section, agreement means an agreement that

  • (a) is not a covered agreement;

  • (b) is entered into by an operator and a group of eligible news businesses the members of which operate news outlets that produce news content primarily for the Canadian news marketplace; and

  • (c) is in relation to the making available of that content by a digital news intermediary operated by the operator.

Code of Conduct

Marginal note:Establishment of code

• 49 (1) The Commission must, by regulation, establish a code of conduct respecting bargaining in relation to news content — including any bargaining and mediation sessions during the bargaining process set out in sections 18 to 44 — between

  • (a) operators of digital news intermediaries that make available news content that is produced primarily for the Canadian news marketplace by news outlets; and

  • (b) eligible news businesses or groups of eligible news businesses.

• Marginal note:Purpose of code

  (2) The purpose of the code is to support fairness and transparency in bargaining in relation to news content.

• Marginal note:Mandatory contents

  (3) The code of conduct must contain provisions

  • (a) respecting the requirement to bargain in good faith that is set out in section 22;

  • (b) requiring parties to bargain in good faith even if they are bargaining outside of the bargaining process set out in sections 18 to 44;

  • (c) respecting the requirement to bargain in good faith that is referred to in paragraph (b); and

  • (d) respecting the information that the parties require to make informed business decisions.

• Marginal note:Discretionary contents

  (4) The code of conduct may, among other things,

  • (a) prohibit the use of specified provisions in agreements, including agreements that are entered into as a result of bargaining or mediation sessions under the bargaining process set out in sections 18 to 44; and

  • (b) set out examples of unfair behaviour that could arise during bargaining.

Marginal note:Compliance order

• 50 (1) If an operator, eligible news business or group of eligible news businesses fails to comply with the code of conduct, the Commission may, by order, require the operator, business or group to take any measure the Commission considers necessary to remedy the non-compliance.

• Marginal note:Statutory Instruments Act

  (2) The Statutory Instruments Act does not apply in respect of an order made under subsection (1).

Discrimination, Preference and Disadvantage

Marginal note:Prohibition

51 In the course of making available news content that is produced primarily for the Canadian news marketplace by news outlets operated by eligible news businesses, the operator of a digital news intermediary must not act in any way that

• (a) unjustly discriminates against an eligible news business;

• (b) gives undue or unreasonable preference to any individual or entity, including itself; or

• (c) subjects an eligible news business to an undue or unreasonable disadvantage.

Marginal note:Complaint

• 52 (1) An eligible news business or group of eligible news businesses may make a complaint to the Commission if the business or group has reasonable grounds to believe that an operator has, in relation to the business or a member of the group, contravened section 51.

• Marginal note:Factors to take into account

  (2) In determining whether an operator has contravened section 51, the Commission may take into account any factor it considers appropriate, but it must take into account whether the conduct in question is

  • (a) in the normal course of business for the operator;

  • (b) retaliatory in nature; or

  • (c) consistent with the purposes of this Act.

• Marginal note:Dismissal of complaint

  (3) If the Commission is of the opinion that a complaint under subsection (1) is frivolous, vexatious or not made in good faith, it may dismiss the complaint summarily.