Online News Act (S.C. 2023, c. 23)

Marginal note:Publication of orders

17 The Commission must publish on its website each exemption order and interim order that it makes.

Bargaining Process

Overview

Definition of party

18 In sections 19 to 44, party means, as applicable, an operator, an eligible news business or a group of eligible news businesses.

Marginal note:Steps in bargaining process

• 19 (1) The bargaining process consists of

  • (a) negotiation or bargaining sessions over a period of 90 days;

  • (b) if the parties are unable, within the negotiation or bargaining period, to reach an agreement, mediation sessions over a period of 120 days, beginning on the day after the end of the negotiation or bargaining period; and

  • (c) if the parties are unable, within the mediation period, to reach an agreement and at least one of the parties wishes to initiate arbitration, final offer arbitration for a period of 45 days, beginning on the day after the end of the mediation period.

• Marginal note:Extension

  (1.1) On request of both parties, the Commission may extend a period provided for in any of paragraphs (1)(a) to (c).

• Marginal note:Scope of bargaining process

  (2) The bargaining process is limited to matters related to the making available, by the digital news intermediary in question, of news content produced by a news outlet that is identified under section 30 as a subject of the bargaining process and, if an application is made under subsection 31(1), determined by the Commission to be a subject of the bargaining process.

• Marginal note:Scope of final offer arbitration

  (3) Any final offer arbitration under the bargaining process is limited to monetary disputes.

Marginal note:Initiation of bargaining process

20 Only an eligible news business that is listed under subsection 29(1) or a group of eligible news businesses that are listed under that section may initiate the bargaining process with an operator.

Marginal note:Duty to bargain

21 An operator must participate in the bargaining process with the eligible news business or group of eligible news businesses that initiated it.

Marginal note:Good faith

22 Parties that are participating in the bargaining process must do so in good faith.

Copyright

Marginal note:Initiation of bargaining process

23 For greater certainty, an eligible news business or a group of eligible news businesses may initiate the bargaining process in relation to news content in which copyright subsists only if

• (a) the business or a member of the group owns the copyright or is otherwise authorized to bargain in relation to the content; or

• (b) the group is authorized to bargain in relation to the content.

Marginal note:Limitations and exceptions

24 For greater certainty, limitations and exceptions to copyright under the Copyright Act do not limit the scope of the bargaining process.

Marginal note:Mediation and final offer arbitration

25 For greater certainty, the use of news content is not to be the subject of mediation sessions or final offer arbitration during the bargaining process if the operator in question

• (a) has made payments to the eligible news business in question for the use of that content in accordance with a licence or agreement between the operator and the business; or

• (b) has made payments or has offered to make payments to the business in question for the use of that content in accordance with the relevant tariff approved by the Copyright Board for the use of that content.

Marginal note:Liability of operators

• 26 (1) If news content is made available by a digital news intermediary and its operator is a party to a covered agreement in relation to the making available of the news content by the intermediary, the operator is not liable under the Copyright Act for an infringement of copyright in relation to activities that are subjects of that agreement.

• Marginal note:For greater certainty

  (2) For greater certainty, nothing in this Act limits the liability of an eligible news business under the Copyright Act for an infringement of copyright.

Eligibility

Marginal note:Eligible news businesses — designation

• 27 (1) At the request of a news business, the Commission must, by order, designate the business as eligible if it

  • (a) is a qualified Canadian journalism organization as defined in subsection 248(1) of the Income Tax Act, or is licensed by the Commission under paragraph 9(1)(b) of the Broadcasting Act as a campus station, community station or native station as those terms are defined in regulations made under that Act or other categories of licensees established by the Commission with a similar community mandate;

  • (b) produces news content of public interest that is primarily focused on matters of general interest and reports of current events, including coverage of democratic institutions and processes, and

    • (i) regularly employs two or more journalists in Canada, which journalists may include journalists who own or are a partner in the news business and journalists who do not deal at arm’s length with the business,

    • (ii) operates in Canada, including having content edited and designed in Canada,

    • (iii) produces news content that is not primarily focused on a particular topic such as industry-specific news, sports, recreation, arts, lifestyle or entertainment, and

    • (iv) is either a member of a recognized journalistic association and follows the code of ethics of a recognized journalistic association or has its own code of ethics whose standards of professional conduct require adherence to the recognized processes and principles of the journalism profession, including fairness, independence and rigour in reporting news and handling sources; or

  • (c) operates an Indigenous news outlet in Canada and produces news content that includes matters of general interest, including coverage of matters relating to the rights of Indigenous peoples, including the right of self-government and treaty rights.

• Marginal note:Revoked designation

  (3) Despite subsection (1), a news business must not be designated as eligible if it was previously designated and had its designation revoked under paragraph 59(1)(c).

• Marginal note:Ineligible news businesses

  (3.1) Despite subsection (1), a news business must not be designated as eligible if

  • (a) the news business is the subject of sanctions under the United Nations Act, the Special Economic Measures Act or the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law), or is owned or controlled by an individual or entity that is the subject of such sanctions; or

  • (b) the news business has its headquarters in a foreign state, as defined in section 2 of the Special Economic Measures Act, that is the subject of measures under an Act referred to in paragraph (a).

• Marginal note:Revoked designation

  (3.2) If a news business described in paragraph (3.1)(a) or (b) was previously designated as eligible, the Commission must, by order, revoke the order designating the business as eligible.

• Marginal note:Statutory Instruments Act

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

Marginal note:Provincial public broadcasters

28 The designation of a provincial public broadcaster as an eligible news business is subject to any other conditions specified in regulations made by the Governor in Council.

Marginal note:Public list

• 29 (1) The Commission must maintain a list of eligible news businesses and publish that list on its website. An eligible news business is only included on the list if it gives its consent.

• Marginal note:Statutory Instruments Act

  (2) The Statutory Instruments Act does not apply in respect of the list maintained under subsection (1).

Marginal note:Identification of news outlets

30 When initiating the bargaining process, an eligible news business or group of eligible news businesses must notify the operator of the digital news intermediary in question of the news outlets that are to be the subjects of the bargaining process.

Marginal note:Application to Commission

• 31 (1) If the operator is of the opinion that a news outlet identified under section 30 by an eligible news business or group of eligible news businesses should not be a subject of the bargaining process, it may apply to the Commission for a determination of the issue.

• Marginal note:Determination

  (2) A news outlet is to be a subject of the bargaining process if the Commission is of the opinion that the outlet is operated exclusively for the purpose of producing news content — including local, regional and national news content — consisting primarily of original news content that is

  • (a) produced primarily for the Canadian news marketplace;

  • (b) focused on matters of general interest and reports of current events, including coverage of democratic institutions and processes;

  • (c) not focused on a particular topic such as industry-specific news, sports, recreation, arts, lifestyle or entertainment; and

  • (d) not intended to promote the interests, or report on the activities, of an organization, an association or its members.

• Marginal note:Special case — Indigenous news outlet

  (2.1) Despite subsection (2), an Indigenous news outlet is to be a subject of the bargaining process if it

  • (a) operates in Canada; and

  • (b) produces news content that includes matters of general interest, including coverage of matters relating to the rights of Indigenous peoples, including the right of self-government.

• Marginal note:Summary dismissal

  (3) If the Commission is of the opinion that an application under subsection (1) is frivolous, vexatious or not made in good faith, it may dismiss the application summarily and the news outlet that is otherwise the subject of the application is a subject of the bargaining process.

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.