Online News Act (S.C. 2023, c. 23)

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.

Provision of Information

Marginal note:Duty to provide information

53 An operator or news business must, at the request of the Commission and within the time and in the manner that it specifies, provide the Commission with any information that it requires for the purpose of exercising its powers or performing its duties and functions under this Act.

Marginal note:Canadian Broadcasting Corporation

53.1 If the Canadian Broadcasting Corporation is party to an agreement with an operator in relation to the making available of news content by a digital news intermediary, the Corporation must provide the Commission, within the time and in the manner that it specifies, with an annual report that includes the following information:

• (a) the amount of compensation received by the Corporation under agreements it has entered into with operators in relation to the making available of news content by digital news intermediaries;

• (b) information relating to the Corporation’s use of that compensation; and

• (c) information relating to the contribution of those agreements to the sustainability of the Canadian digital news marketplace, including any such information that the Commission specifies must be included in the report.

Marginal note:Minister and Chief Statistician

• 54 (1) The Commission must, on request, provide the Minister or the Chief Statistician of Canada with any information submitted to the Commission under this Act.

• Marginal note:Restriction

  (2) Information that is provided to the Minister in accordance with subsection (1) is only to be used by the Minister for the purpose of permitting the Minister and the Governor in Council to exercise their powers and perform their duties and functions under this Act.

Marginal note:Confidential information

• 55 (1) For the purposes of this section, an individual or entity that submits any of the following information to the Commission may designate it as confidential:

  • (a) information that is a trade secret;

  • (b) financial, commercial, scientific or technical information that is confidential and that is treated consistently in a confidential manner by the individual or entity that submitted it; or

  • (c) information the disclosure of which could reasonably be expected to

    • (i) result in material financial loss or gain to any individual or entity,

    • (ii) prejudice the competitive position of any individual or entity, or

    • (iii) affect contractual or other negotiations of any individual or entity.

• Marginal note:Prohibition — disclosure

  (2) Subject to subsections (4), (5), (7) and (8), if an individual or entity designates information as confidential and the designation is not withdrawn by them, it is prohibited for an individual described in subsection (3) to knowingly disclose the information, or knowingly allow it to be disclosed, to any individual or entity in any manner that is calculated or likely to make it available for the use of any individual or entity that may benefit from the information or use it to the detriment of any other individual or entity to whose business or affairs the information relates.

• Marginal note:Application to individuals

  (3) Subsection (2) applies to any individual referred to in any of the following paragraphs who comes into possession of designated information while holding the office or employment described in that paragraph, whether or not the individual has ceased to hold that office or be so employed:

  • (a) a member of, or individual employed by, the Commission;

  • (b) in respect of information disclosed under paragraph (4)(b) or (5)(b), the Commissioner of Competition appointed under subsection 7(1) of the Competition Act or an individual whose duties involve the carrying out of that Act and who is referred to in section 25 of that Act; and

  • (c) in respect of information provided under subsection 54(1), the Minister, the Chief Statistician of Canada or an agent of or an individual employed in the federal public administration.

• Marginal note:Disclosure of information submitted in proceedings

  (4) If designated information is submitted in the course of proceedings before the Commission, the Commission may

  • (a) disclose it or require its disclosure if it determines, after considering any representations from interested individuals and entities, that the disclosure is in the public interest; and

  • (b) disclose it or require its disclosure to the Commissioner of Competition on the Commissioner’s request if the Commission determines that the information is relevant to competition issues being considered in the proceedings.

• Marginal note:Disclosure of other information

  (5) If designated information is submitted to the Commission otherwise than in the course of proceedings before it, the Commission may

  • (a) disclose it or require its disclosure if, after considering any representations from interested individuals and entities, it determines that the information is relevant to the determination of a matter before it and determines that the disclosure is in the public interest; and

  • (b) disclose it or require its disclosure to the Commissioner of Competition on the Commissioner’s request if it determines that the information is relevant to competition issues being raised in the matter before it.

• Marginal note:Use of information disclosed to Commissioner of Competition

  (6) It is prohibited for the Commissioner of Competition and any individual whose duties involve the administration and enforcement of the Competition Act and who is referred to in section 25 of that Act to use information that is disclosed

  • (a) under paragraph (4)(b) other than to facilitate the Commissioner’s participation in proceedings referred to in subsection (4); or

  • (b) under paragraph (5)(b) other than to facilitate the Commissioner’s participation in a matter referred to in subsection (5).

• Marginal note:Disclosure

  (7) The Commission may disclose designated information obtained by it if requested to do so under sub­section 54(1).

• Marginal note:Information inadmissible

  (8) Designated information that is not disclosed or required to be disclosed under this section is not admissible in evidence in any judicial proceedings except proceedings for failure to submit information required to be submitted under this Act or for forgery, perjury or false declaration in relation to the submission of the information.

Marginal note:Offence — disclosure

• 56 (1) Every individual who contravenes subsection 55(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:Offence — use

  (2) Every individual who contravenes subsection 55(6) 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:Defence

  (3) An individual is not to be found guilty of an offence under subsection (2) if they establish that they exercised due diligence to prevent the commission of the offence.