On Oct. 30, every Canadian business that has a Facebook page, Instagram account or WhatsApp Business line will be deemed to sign a contract without actually ever signing anything.
asserted
that → have → anything
Meta’s new commercial terms take effect that day, and a business accepts them by continuing to use the Meta product.
asserted
business → take → product
Users have no opt-out, and Meta’s notice tells a business that objects to stop using its products.
asserted
that → have → products
I have spent my career analyzing and reading contracts, and the clauses that matter most rarely announce themselves.
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that → spend → themselves
This one lets Meta, or anyone acting for it, crawl any website associated with a business account and use what it discovers.
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it → let → what
As first published, it listed training Meta’s products among the permitted uses, and Meta counts its own AI among those products.
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Meta → publish → products
After Nieman Lab reported it, Meta removed the word “train” the next day, although a later comparison found it still in the U.K. edition.
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it → report → edition
Meta says the clause now reaches only its advertising and business products, and that content owners can still signal their preferences through robots.txt, the file a website uses to tell crawlers which pages are off limits.
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pages → say → limits
The clause, as Nieman Lab reproduced it after the revision, does not mention robots.txt, and a legal expert it consulted says “business product” does not seem to be a defined term.
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product → reproduce → robots.txt
Whether training an AI on a scraped website is lawful in Canada remains unsettled.
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is → train → Canada
Some scholars think fair dealing covers it.
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dealing → think → it
I need not settle that here.
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I → settle → that
Meta’s clause does not wait for the answer.
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clause → wait → answer
A suit by Canadian news publishers against OpenAI is before an Ontario court, and Postmedia, which owns this newspaper, is a plaintiff.
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which → own → newspaper
Meta’s clause does not wait for the answer.
asserted
clause → wait → answer
It turns an open question of copyright into a closed question of contract, and it makes consent the price of reaching customers.
asserted
consent → turn → customers
At least one million businesses, by Security Affairs’ count, already use Meta’s AI agents in WhatsApp and Messenger, and the new terms cover anyone who runs ads, manages a page or sends marketing messages.
asserted
who → use → messages
A media lawyer told Nieman Lab that the original wording would have handed Meta content that would cost many millions of dollars in a licensing market.
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that → tell → market
Lawyers draft licences like that for a fee, with a counterparty who can say no.
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who → draft → counterparty
Astonishingly, here, your silence constitutes your signature.
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silence → constitute → signature
The websites belong to people as well as companies.
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websites → belong → people
A clinic’s page can carry its staff’s photographs, and a restaurant’s page its customers’ reviews.
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page → carry → photographs
In May, the federal and provincial privacy commissioners found that OpenAI’s original training of ChatGPT fell short of Canadian privacy law.
uncertain
training → find → law
A business page is full of personal information the business never agreed to hand over.
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business → agree → information
The Commissioner has an investigation of X open over the same use of personal information.
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investigation → have → information
So why do Canadians sign onto these terms?
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Canadians → sign → terms
Because refusing is a private cost that comes with a public benefit.
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that → refuse → benefit
A shop that leaves Meta automatically risks losing the channel it uses to reach its customers on Oct. 31, but the shop next door keeps them.
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shop → leave → them
No single business can say no and survive.
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business → say → ?
Not surprisingly, none do.
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none → do → ?
Competition lawyers call this type of situation “tying.”
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lawyers → call → situation
Whether Meta holds the market power the Competition Act requires is for the Competition Bureau and the Tribunal to decide.
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Bureau → hold → power
A University of Wisconsin law professor, Benjamin Sobel, told Nieman Lab that a business that wants Meta’s products must also accept its scraping.
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that → tell → scraping
This week, the advocacy group, the Movement for an Open Web asked the European Commission and Britain’s Competition and Markets Authority to suspend the terms.
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group → ask → terms
Canada’s Competition Bureau and Privacy Commissioner have the same authority to ask the same questions.
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Bureau → have → questions
Canadian businesses have until Oct. 30 to hear whether they have.
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they → have → Oct.
The good news is that Canada needs no new regulator, new levy, or new statute to address this situation.
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Canada → need → situation
We shelter some of our domestic producers from competition, then leave the markets where Canadian firms are price-takers unattended.
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firms → shelter → markets
The tools already exist.
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tools → exist → ?
The Competition Bureau sued Google over its advertising technology on Nov. 28, 2024, and the Competition Tribunal, the specialist body that hears these cases, rejected Google’s constitutional challenge in March.
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that → sue → March
…and 14 more, not listed.
The Aporia
