Digital Updates – December

On December 18, a bipartisan group of Senators sent a letter to U.S. Trade Representative Robert E. Lighthizer, requesting that the administration not include broad online liability protections in the potential U.S.-UK trade agreement. The letter, signed by Senators Mark Warner (D-VA), Richard Blumenthal (D-CT), Rob Portman (R-OH), and Chuck Grassley (R-IA), notes that both the United States Congress and the United Kingdom are currently engaged in extensive reviews of their online liability regulations and that including a safe harbor clause would be “inappropriate” and “frankly unhelpful.” Multiple members of Congress have recently proposed amendments to Section 230 of the Communications Decency Act that protects online platforms from liability for the third-party content they publish, thereby facilitating various online harms. The administration included language similar to Section 230 in the recently negotiated United States-Mexico-Canada Agreement (USMCA), in addition to the negotiating objectives for the U.S.-UK agreement.

On December 20, Congress expanded government loan forgiveness to local news outlets in the proposed COVID relief bill. House Speaker Nancy Pelosi (D-CA) and Senate Democratic Leader Chuck Schumer (D-NY) released a joint statement praising these “key modifications to PPP” that expand eligibility for “local newspapers, TV and radio broadcasters.” Facing falling adverting revenues, many local news outlets are struggling. Their inclusion in the relief package is pivotal for preserving a diversity of voices in news and delivering high-quality information to citizens. Read more here.

On December 17, a bipartisan coalition of 38 states filed a complaint in the U.S. District Court for the District of Columbia alleging Google used its market power to thwart competition. The lawsuit alleges that Google leveraged its market power to favor its own webpages and products violating antitrust laws. This is the third lawsuit against Google, following the DOJ’s antitrust suit and the Texas-led lawsuit targeting Google’s advertising practices. The coalition filed the complaint with a motion to consolidate the case with the DOJ’s recently filed lawsuit against Google. Read more here.

On December 16, 10 states filed a complaint in the District Court for the Eastern District of Texas Sherman division alleging that Google illegally monopolized products and services that publishers used to advertise. The complaint further alleges that Google’s anticompetitive practices kept publishers from properly monetizing their content. The lawsuit is led by Texas Attorney General Ken Paxton. Read more here.

On December 9, the FTC announced that it will sue Facebook for violating antitrust law along with 46 states’ attorneys general. The complaint, filed in the United States District Court for the District of Columbia, alleges that “Facebook has engaged in a systematic strategy … to eliminate threats to its monopoly,” violating Section 2 of the Sherman Act. This strategy included buying out competitors like Instagram and WhatsApp. This lawsuit comes less than two months after DOJ filed its lawsuit against Google for engaging in illegal monopolistic behavior. Read more here.

On December 9, the Australian government published its proposed legislation to create an enforceable code to require online platforms to pay news publishers for their content. The law will codify the Australian Competition and Consumer Commission’s (ACCC) draft code released earlier this year, reportedly with some changes. The code requires Google and Facebook to negotiate with news publishers, individually or collectively, for compensation. If the parties are unable to find a compromise agreement, the code establishes an arbitration procedure, managed by an independent arbitrator. According to news reports, the code will initially only apply to Facebook News Feed and Google Search, although it may be expanded in the future. The legislation has now been sent to Parliament, which will have to approve it before it enters into force. Read more here.

On December 2, Google announced that it would start giving consumers access to paywalled content. Google will pay participating publishers for Google News Showcase users’ access to paywalled content. Google News Showcase launched two months ago in limited countries and Google hopes to continue expanding to more countries. It is not yet live in the U.S. Read more here.

On November 30, Facebook announced it would pay some UK publishers for their content. Facebook will hire contractors to select the main stories of the day from mainstream outlets to appear in its News Tab. Facebook has not said how much they will be paying publishers. UK news publishers hope that the Facebook News Tab will be another step toward compensating news publishers for their content and bringing trustworthy journalism to Facebook users. Read more here.

On November 27, the Select Committee on Communications and Digital of the House of Lords of the United Kingdom published a report titled “Breaking News? The Future of UK Journalism.” The comprehensive report outlines the UK news media landscape before making multiple recommendations, ranging from building media literacy to improving job prospects in journalism, and addressing the imbalance of power between news publishers and online platforms. Noting the “dysfunctional online advertising market,” the report urges the Government to establish a Digital Markets Unit and to include a mandatory bargaining code, modelled after Australia’s proposed code, in the Online Harms Bill. Read the full report here.

On November 27, the UK Government released its responses to the Competition and Markets Authority’s (CMA) study on online platforms and digital advertising, published in July 2020. In its response, the Government accepted the CMA’s findings and recommendations and committed itself to the introduction of an enforceable code of conduct for online platforms and to establishing a Digital Markets Unit (DMU) within the CMA. The code of conduct would be aimed at protecting competition online, with the Government’s response noting that the code should also include provisions governing the relationship between the online platforms and the news media, as recommended in the Cairncross Review. The DMU, to be established from April 2021, will introduce, maintain, and enforce the code. Meanwhile, the Government has commissioned the Digital Markets Taskforce to advise it on the development of the code. According to news reports, legislation is expected in 2022. Read the more here.