The political climate might finally be ripe for giving news publishers more clout in negotiations with the Big Tech platforms that draw eyeballs and ad dollars by aggregating the original work of others, including cable and broadcast news operations. Proponents say the alternative could be the death of independent local journalism. That’s hyperbole, perhaps, but maybe now with a louder ring of truth.
Several factors are at work to give the latest shot at collective bargaining a chance. The COVID-19 pandemic has put an even greater emphasis on access to the latest news on everything from vaccine availability to what is opened or closed to what is safe to do.
Then there is the flood of fake news, particularly online, that has put a premium on trusted news sources, the kinds that take money to invest in reporters and editors and bureaus and fact-checkers.
Add in the fact that the Big Tech platforms like Google and Facebook — the 800-pound gorillas with whom news outlets must negotiate — aren’t high on Capitol Hill’s holiday card list, over concerns ranging from data breaches and promoting extremism to election ads and antitrust issues, and a bipartisan push for collective news bargaining could have legs after several years of trying.
Seeking a ‘Fair Chance’
David Chavern, president of the News Media Alliance, representing more than 2,000 publishers, said the campaign represented by the Journalism Competition and Preservation Act is really only a “fair chance” for the news media to fight for themselves. “Today, local journalism is under threat because the dominant digital platforms control access to audiences and refuse to fairly value what we provide,” Chavern has said in pushing for the legislation.
He has willing listeners on both sides of the aisle. Sens. John Kennedy (R-La.) and Amy Klobuchar (D-Minn.), political opposites in the chamber, said the Journalism Competition and Preservation Act would give "news content creators" — print, broadcast or digital — an antitrust safe harbor to negotiate collectively with digital platforms like Facebook and Google for carriage of their original content.
Rep. David Cicilline (D-R.I.), the House antitrust subcommittee chairman who is backing a similar bill, argued that if the balance of power remains as it is, Big Tech’s dominance of digital advertising could be an “extinction-level event” for local media.
Similar bills have tried, and failed, to provide a safe harbor before, and a recent effort in Australia made headlines when Facebook pulled Australian news sources from domestic news feeds. (Facebook restored the Australian sources after legislators proposed tweaks to the law.)
But the new pandemic-driven normal, with edge providers seen increasingly as gatekeepers rather than as tenders of the virtuous internet garden, might improve the bill’s prospects.
The bill would grant publishers immunity from federal and state antitrust laws for a 48-month period while they bargain collectively with digital platforms.
News content creators are defined as outlets with a dedicated professional editorial staff that create and distribute original news and related content concerning local, national or international matters of public interest on at least a weekly basis, and are marketed via subscriptions, advertising or sponsorship.
They include operations that provide original news and related content, at least 25% of which is current news and related content, or broadcast original news and related content via an FCC license.
The online content distributors that publishers would collectively negotiate with must have at least 1 billion active users per month on all their websites worldwide, so the bill is clearly aimed at the biggest platforms.
Seeking a Safe Harbor
Publishers under the News Media Alliance banner have for years been trying to get Congress to give news publishers a limited safe antitrust harbor so they can get tech platforms — Facebook and Google most notably — to pay for use of their content. That’s because the tech platforms “take most of the advertising revenue sold against that content,” the NMA contends, adding that “[a]dvertising revenue that previously went to the news publishers and allowed them to reinvest in quality journalism is now going to the platforms.”
The bill says the joint negotiation is only allowed so long as negotiations are: not limited to price (no price fixing); are nondiscriminatory as to similarly situated news content creators; are directly related to the quality, accuracy, attribution or branding, and interoperability of news; and involve terms available to all news content creators.
The coordination among bidders has to be directly related to and reasonably necessary for negotiations with an online content distributor and cannot involve any person that is not a news content creator or online content distributor.
“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," Klobuchar said of the bill. "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.”
Some congressional Republicans are warning about helping one powerful constituency against another. They suggested that The New York Times, for example, is plenty powerful on its own without letting it team up with other publishers, digital and otherwise. Broadcasters, though, argue that the power is squarely in the hands of Big Tech.
Local Ad Revenues at Risk
At a recent House antitrust subcommittee hearing on “Saving a Free and Diverse Press,” Graham Media Group president Emily Barr, who chairs the National Association of Broadcasters TV board, told Congress: “The market power of the tech platforms undermines the online advertising model for local broadcast journalism in two significant ways. First, the tech platforms’ role as content gatekeepers stifles our ability to generate user traffic independent of their services. Second, anti-competitive terms of service and a ‘take it or leave it’ approach leave local broadcasters with a below-market sliver of those advertising revenues that are derived through their products.”
Barr, like Chavern, views the current imbalance as an extinction-level event.
“If we do nothing, local, independent journalism will not thrive,” she said. “Indeed, it may not even survive.”
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