On Wednesday, Sens. Amy Klobuchar (D-Minn.) and John Kennedy (R-La.) along with Reps. David Cicilline (D-R.I.) and Ken Buck (R-N.Y.) announced that they introduced legislation, entitled “Journalism Competition and Preservation Act of 2021” to allow news publishers and the newspaper industry to collectively negotiate with digital platforms.
Specifically, the issue addressed by the bill is “whether the playing field for delivering news content is uneven,” according to a press release, which noted that “the majority of Americans now get their news from Google or Facebook, which control most digital advertising revenue.” Moreover, the press release states that “these companies ultimately decide what their users read – whether the content is clickbait, political commentary or quality news stories.”
In particular, the legislation will afford news publishers temporary immunity from federal and state antitrust laws for 48 months while they are collectively negotiating with dominant digital platforms regarding the terms that their content may be distributed on said platforms in an effort to bring subscription and advertising dollars back to news publishers in order to protect and preserve journalism and the news industry.
The Act states that the negotiations: “are not limited to price”; “are nondiscriminatory as to similarly situated news content creators”; “directly relate to the quality, accuracy, attribution or branding and interoperability of news”; and “pertain to terms that would be available to all news content creators.” In addition to the aforementioned, the law notes that coordinated negotiations can also only occur if “the coordination between the news content creators is directly related to and reasonably necessary for negotiations with an online content distributor that are otherwise consistent with this Act,” and “the negotiations do not involve any person that is not a news content creator or an online content distributor.”
“Newspapers are locked in a life-or-death struggle with tech giants like Google and Facebook, and it’s not a fair fight,” Sen. Kennedy said in the press release. “Local papers have continued to deliver news despite declines in circulation, but readers are losing out as their options for news coverage evaporate. This bill will support the independence of local papers by giving news publishers the power to collectively negotiate with digital platforms like Google and Facebook. Google and Facebook aren’t just companies — they’re countries, and we can’t tolerate tech giants’ strangling their print news competitors.”
“We must enable news organizations to negotiate on a level playing field with the big tech companies if we want to preserve a strong and independent press,” Sen. Klobuchar said in the press release. “This bipartisan legislation will improve the quality of reporting and ensure that journalists are able to continue their critical work. Our media outlets need a fighting chance when negotiating for fair treatment by the digital platforms where so many Americans consume their news.”
The legislation comes after a West Virginia newspaper publisher sued Google and Facebook for alleged antitrust violations in the digital advertising market, which has purportedly “threatened” the “existence of the newspaper industry” because newspapers cannot fairly compete for online advertising revenue.
Additionally, on Friday, House Judiciary’s antitrust, commercial, and administrative law subcommittee hearing focused on the way that Google and Facebook distribute news, and the newly introduced Journalism Competition and Preservation Act of 2021, which has bipartisan support. The bill is a large legislative threat to tech, particularly as it relates to the antitrust debate following other government action against the tech giants, including federal lawsuits against Google and Facebook, respectively.
The bill comes after other countries like Australia engaged in legislative efforts regarding news publishers’ content and tech giants. For example, in January Google and Facebook pushed back against an Australian law that would force them to pay news publishers for their content. The Australian law was approved in February, causing Google to strike a deal with various news publishers. Meanwhile, Microsoft issued support for the Australian effort to protect news publishers.
