Barry Appleton: Ottawa must not tolerate Meta’s new commercial terms

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. Meta’s new commercial terms take effect that day, and a business accepts them by continuing to use the Meta product. Users have no opt-out, and Meta’s notice tells a business that objects to stop using its products.

Sign In or Create an Account

I have spent my career analyzing and reading contracts, and the clauses that matter most rarely announce themselves. This one lets Meta, or anyone acting for it, crawl any website associated with a business account and use what it discovers. As first published, it listed training Meta’s products among the permitted uses, and Meta counts its own AI among those products.

Columnist Jesse Kline keeps you up to date with what’s happening in Israel and the effects of antisemitism on life here in Canada. Friday mornings.

By signing up you consent to receive the above newsletter from Postmedia Network Inc.

A welcome email is on its way. If you don't see it, please check your junk folder.

The next issue of Channel Israel will soon be in your inbox.

We encountered an issue signing you up. Please try again

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. 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. That is a statement from Meta, not a term. 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.

Whether training an AI on a scraped website is lawful in Canada remains unsettled.

Some scholars think fair dealing covers it. I need not settle that here. Meta’s clause does not wait for the answer. A suit by Canadian news publishers against OpenAI is before an Ontario court, and Postmedia, which owns this newspaper, is a plaintiff. Meta’s clause does not wait for the answer. It turns an open question of copyright into a closed question of contract, and it makes consent the price of reaching 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. 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. Lawyers draft licences like that for a fee, with a counterparty who can say no. Astonishingly, here, your silence constitutes your signature.

The websites belong to people as well as companies. A clinic’s page can carry its staff’s photographs, and a restaurant’s page its customers’ reviews. In May, the federal and provincial privacy commissioners found that OpenAI’s original training of ChatGPT fell short of Canadian privacy law. A business page is full of personal information the business never agreed to hand over. The Commissioner has an investigation of X open over the same use of personal information.

So why do Canadians sign onto these terms? Because refusing is a private cost that comes with a public 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. No single business can say no and survive. Not surprisingly, none do. That is not consent by any common definition. It is nothing more than a toll.

Competition lawyers call this type of situation “tying.” Whether Meta holds the market power the Competition Act requires is for the Competition Bureau and the Tribunal to decide. A University of Wisconsin law professor, Benjamin Sobel, told Nieman Lab that a business that wants Meta’s products must also accept its 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. Britain’s regulator is already in urgent discussions with Meta. Canada’s Competition Bureau and Privacy Commissioner have the same authority to ask the same questions. Canadian businesses have until Oct. 30 to hear whether they have.

The good news is that Canada needs no new regulator, new levy, or new statute to address this situation. We shelter some of our domestic producers from competition, then leave the markets where Canadian firms are price-takers unattended. The tools already 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. Private businesses can also ask the Tribunal for leave to bring an abuse of dominance case themselves, and since June 20, 2025, they can seek payment of up to what the firm gained. A contract that makes access to customers depend on a licence over that customer’s own content is a fair test of those existing powers.

We have the existing capacity — but we see inaction. It looks like no one in Ottawa is home to protect Canadians from Meta’s high-handed and market-chilling action.

What can a Canadian do before Oct. 30?  First, read the new clause. Keep a dated copy of the terms your Meta account displays, and record any objection in writing. Meta’s developer documentation names its AI-training crawler, Meta-External Agent, and explains how to block it in robots.txt, but it also says two other Meta crawlers may bypass robots.txt, and the contract promises nothing. Anything that must stay private should stay off the public page. An individual can limit old posts to friends, because Meta says it trains on public posts and not private messages, and can complain to the Privacy Commissioner, who has already pressed OpenAI, LinkedIn and X.

Ottawa does not need a new law to answer this. The Competition Bureau can open an inquiry into whether tying Meta’s business tools to a licence over a business’s own website abuses a dominant position, and ask Meta to defer the clause for Canadian accounts. If Meta declines, the Bureau can file a case with the Competition Tribunal and seek an interim order. The Privacy Commissioner, who warned the platforms in 2024 about unlawful scraping, can examine what Meta’s crawler collects. And Ottawa, which resumed buying ads on Facebook and Instagram in 2025, can decline to accept these terms by silence. The tools exist, so do the powers. Ottawa has not yet picked them up.

Barry Appleton is Interim Director of the Balsillie Legal Advisory Centre at the Balsillie School of International Affairs, Managing Partner of Appleton & Associates International Lawyers LP, and Distinguished Adjunct Professor and Co-Director of the Center for International Law at New York Law School. 

This website uses cookies to personalize your content (including ads), and allows us to analyze our traffic. Read more about cookies here. By continuing to use our site, you agree to our Terms of Use and Privacy Policy.