Digital Updates – February

DIGITAL UPDATES

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FEBRUARY UPDATES

Australia Passes Bargaining Code

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On February 25, both houses of the Australian Parliament passed the News Media Bargaining Code. It passed with several last-minute amendments that include more negotiation time before binding arbitration and government discretion to exempt the platforms from arbitration after considering the power imbalance against a platform’s “significant contribution to the sustainability of the Australian news industry.” The Code passed despite multiple attempts by both Google and Facebook to undermine and spread misinformation about it. The Code is the first of its kind, and many other countries are considering using it as a guide for how to compensate news publishers and preserve quality journalism that is essential to democracy. Read more here.

Microsoft Joins Coalition to Compensate News Publishers

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On February 22, Microsoft announced that it would join forces with European publishers to have platforms pay for news content throughout Europe. They plan to model the payment directive on Australia’s News Media Bargaining Code legislation, with an arbitration model. That model would ensure that news publishers are fairly compensated for their content, despite the digital platforms’ dominant market power. Microsoft VP Casper Klynge said, “Access to fresh, broad and deep press coverage is critical to the success of our democracies… This initiative is a logical next step.” Read more here.

Microsoft Joins Coalition to Tackle Misinformation

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On February 22, Microsoft announced that it would join forces with tech and media companies to form a coalition aimed at addressing disinformation and “developing technical standards for certifying the source and history or provenance of media content.” This technology could create an open standard for platforms to minimize harmful information and give more traffic to trusted journalism. If implemented, it could also increase the public’s trust in journalism by eliminating deceptive and misleading content. Read more here.

Facebook Strikes Deal, Will Reinstate News in Australia

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On February 22, Facebook announced it had reached an agreement with the Australian government to keep news on its platform. The announcement appeared as an update on the company’s original blog post announcing it would ban news from its platform in Australia. Facebook said it had constructive discussions and is satisfied that the government “agreed to a number of changes and guarantees that address our core concerns.” The Australian Treasurer published the amendments, saying, “The amendments will strengthen the hand of regional and small publishers in obtaining appropriate remuneration for the use of their content by the digital platforms.” Facebook will be restoring news to its platform in Australia within the next few days. Read more here.

Facebook Blocks Australian News

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On February 17, Facebook announced it would prevent users and publishers from “sharing or viewing Australian and international news content.” This means Australian news publishers and individual users will be unable to post or share any news content to Facebook, and they will not have access to international publishers’ content. Despite claiming to champion journalism, Facebook said they give more value to publishers, and they receive “minimal” business gain from news. Facebook’s action was a direct retaliation to the News Media Bargaining Code gaining approval from the Australian parliament. They claim the Code is not workable, as digital platforms struggle to avoid compensating publishers for their content. Read more here.

European Union Moves Closer to Adopting the ePrivacy Regulation

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On February 10, the European Union took a decisive step towards adopting the proposed ePrivacy Regulation as the European Council reached a compromise on its negotiating mandate. The ePrivacy Directive, first proposed by the European Commission in 2017, would update the EU rules on when service providers are allowed to process user data and have access to data stored on users’ devices, including the use of cookies and metadata. The regulation would complement and particularize the General Data Protection Regulation (GDPR), which forms the backbone of the EU’s online privacy regime together with the current ePrivacy Directive, adopted in 2002. The Council’s proposal would establish a default rule that all electronic communications data is confidential, and use and processing of such data is only allowed when permitted by the regulation. The European Parliament reached its negotiating mandate in 2017. The institutions can now start negotiations to reach a compromise agreement. Read more.

Maryland Exempts News Publishers from Ad Tax

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On February 5, Maryland Senate President William Ferguson introduced a bill that would exempt news publishers from Maryland’s digital advertising tax. The legislation also prohibits the taxable companies from passing on the cost of the tax to the consumer. Maryland’s efforts are setting important precedents for other states as they work to ensure the sustainability of quality journalism. The bill is set to have a hearing on February 17. Read more here.

Google Launches News Showcase in Australia

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On February 4, Google announced it was launching its News Showcase in Australia. If publishers agree to Google’s terms, Google will pay them for including their content in the Showcase. The details on payment remain unreleased. Publications participating in the News Showcase include The Canberra Times, The Illawarra Mercury, The Saturday Paper, Crikey, The New DailyInDaily and The Conversation. This comes after multiple threats to pull all Google services from Australia if the legislature passes the News Media Bargaining Code. The Code will ensure news publishers have equal bargaining power in negotiations for compensation. Read more here.

Canadian Publishers Urge Parliament to Preserve Press

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On February 3, News Media Canada released a letter to all Members of Parliament, urging them to prepare legislation to compensate news publishers for their content. The letter points out that Google and Facebook have disproportionate market power and use news publishers’ content without compensation, leaving news publishers to struggle. With COVID-19 aiding in a swift decline of journalism jobs, producing quality journalism is increasingly difficult. But, the letter points to Australia’s News Media Bargaining Code as a promising solution to require Google and Facebook to fairly compensate publishers for their content. Read more here.

Microsoft Supports Australia’s Code

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On February 3, Microsoft released a statement fully supporting Australia’s News Media Bargaining Code. Microsoft CEO Satya Nadella spoke with Australian Prime Minister Scott Morrison and Communications Minister Paul Fletcher about correcting the power imbalance between digital platforms and Australian news publishers. Microsoft said they are “committed to Australia and the news publishers that are vital to the country’s democracy,” and they fully back the Australian Competition and Consumer Commission’s News Media Bargaining Code. The statement ended with Microsoft promising “while other tech companies may sometimes threaten to leave Australia, Microsoft will never make such a threat.” Read more here.

ACCC Holds Public Hearing on News Media Bargaining Code

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On February 1, the Australian Competition and Consumer Commission (ACCC) hosted a public hearing to discuss the News Media Bargaining Code legislation and address concerns raised by public submissions. While the hearing addressed praise for and concerns about the Code, it was primarily focused on building a sustainable model for financing news publishers. One witness pointed out how digital platforms have worked to diminish the value of news since the Code was announced, saying, “Both Facebook and Google pushed around news not being an important part of their business, despite it being a critical part of the functioning of the democracy in which they’re operating.” Other witnesses voiced concerns about sustaining local news and making sure the Code adequately supports even the smallest players, ensuring a diverse and independent press. Read more here.

Ninth Circuit says First Amendment Does Not Apply to Big Tech

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On February 26, the Ninth Circuit effectively held that any challenges to a digital platform’s censorship or ad-blocking on First Amendment grounds will fail. In a unanimous opinion, the court found that YouTube is not a public forum or government actor. PragerU argued that the expansive reach of the internet and selective censorship qualified YouTube as a moderator of an effective town square, subject to First Amendment scrutiny. The court rejected this argument to find that online platforms do not require First Amendment protections, claiming that the new digital age has not changed legal principles. Read more here.

Rep. Cicilline Says Limiting Section 230 Legislation in Works

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On February 24, House Antitrust Subcommittee Chairman David Cicilline (D-RI) told reporters he will propose a bill to limit Section 230 immunity for digital platforms that knowingly publish false political ads. Cicilline aims for the bill to address the “emergency problem” of false political ads. His staff is still deciding whether to remove Section 230 immunity for all political ads or just false political ads. Cicilline said that big tech companies profiting from “demonstrably false advertising” will directly affect whether citizens will have truthful information when deciding who to vote for. He has been a critic of Section 230, demanding action from Congress if the FTC fails to act. Cicilline plans to introduce the bill in a month. Read more here.

Google Alleges State AGs Conduct “Irregular Investigation”

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On February 21, The Wall Street Journal reported that Google is not surrendering emails, texts, and other documents for the state attorneys general investigation into possible anticompetitive practices. A Google spokesperson claims the company has complied with the investigation but raised concerns about the investigation being “irregular.” The spokesperson alleged that the investigation has included “unusual arrangements with advisers who work with our competitors and vocal complainants.” Texas Attorney General Ken Paxton remains suspicious of Google’s behavior, saying they are not acting “clean.” Read more here.

DOJ Hosts Workshop on Section 230

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On February 19, the DOJ hosted a workshop featuring three panels about Section 230. Attorney General William Barr opened the event by expressing concern about Section 230, specifically digital platforms’ lack of cooperation with law enforcement. The panels discussed litigating Section 230, addressing illicit activity online, and alternatives to Section 230. The panelists included testimony from News Media Alliance’s President and CEO David Chavern, Patrick Carome who argued the Zeran case, and other experts in the field. Chavern stated that commercial decisions of the platforms algorithms that choose what content readers see and don’t see should carry with it responsibility for those decisions.  The panelists divided over Section 230’s long and short term effects, with one side arguing for platform accountability and the other for self-regulation. Read more here.

 

Alliance Files an Amicus Brief with the Supreme Court in Google v. Oracle

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On February 19, the News Media Alliance filed an amicus brief with the Supreme Court in support of Oracle in the Google v. Oracle case. The case concerns Google’s unauthorized copying of parts of Oracle’s code when developing applications for Android. The Supreme Court will hear the case in March and wants the parties to address two questions: whether the code is copyrightable, and whether Google’s use constituted fair use. The lower U.S. Court of Appeals for the Federal Circuit ruled in favor of Oracle on both of these questions, and the Supreme Court accepted Google’s appeal in November. The Alliance amicus brief focuses solely on the fair use question, challenging Google’s argument that its use of Oracle’s code was fair use under the current statutory standard. The brief contrasts Google’s actions in this case to their widespread and unauthorized use of news content without compensation for their own commercial purposes. Read the Alliance statement here and the full brief here.

Google Reportedly Talking with French Publishers About Paying for News

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Following the passage of the European Union’s Copyright Directive last year, Google is now in discussions with French news publishers on paying for their news content, according to news reports. Article 15 of the EU Copyright Directive created a so-called “Publishers’ Right” that gives news publishers the right to protect their content online. France became the first country to implement the Publishers’ Right in July, after which Google indicated that it would refuse to pay for news content in France and would simply display headlines in its search results unless publishers waived their rights. A competition claim was filed against Google for using its market dominance to evade the law, and a ruling is expected to come in March. According to the Financial Times, Google is now negotiating with select French publishers, including Le Monde and Figaro, about direct content payments. It is unclear what form the payments would take. Read more here.

Senator Graham’s New Bill Circulates, Would Add Hurdle for Online Platform Immunity

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On February 13, Senator Lindsey Graham’s (R-SC) draft bill, which would predicate interactive computer services’ Section 230 immunity on compliance with “best practices” in the proposed Act and impose liability for tech platforms that allow dissemination of child sexual abuse material (CSAM), circulated. The EARN IT Act of 2019 would establish a Commission that would seek to prevent the exploitation of children online by submitting recommended best practices to the attorney general (AG). The AG reviews and can modify the best practices before publishing them to the Federal Register, under Section 4(b) of the Act. Within one year of posting these best practices, interactive computer services are required under Section 4(c) to submit a written certification to the AG that they have reviewed and implemented the best practices. If the AG has any reason to believe the interactive computer service is not complying with best practices it can order an investigation, imposing significantly more scrutiny on the platforms previous blanket immunity under Section 230.  Read more here.

The UK Department for Culture Responds to the Online Harms White Paper

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On February 12, the UK’s Department for Digital, Culture, Media & Sport announced that it is “minded” to grant the Office of Communications (Ofcom) the power to regulate online platforms. The announcement was included in the Department’s initial response to the Online Harms White Paper released last April. The aim is to make the internet a safer place by protecting children and vulnerable people, in addition to increasing user trust in technology. According to the government’s announcement, Ofcom will be responsible for protecting internet users from harmful and illegal content, particularly terrorist and child abuse content. The regulations will only apply to companies that share user-generated content. Currently, Ofcom is responsible for regulating the broadcasting and telecoms industries. The Department will publish a full response to the White Paper later in the spring. Read more here.

FTC Requests Information on Past Acquisitions by Large Tech Companies

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On February 11, the Federal Trade Commission (FTC) announced that it will re-examine past acquisitions of small and nascent firms by big tech companies, including Google, Amazon, Facebook, Apple, Microsoft, and Alphabet. The Special Orders, issued under Section 6(b), require the identified companies to provide information on acquisition transactions that took place in the last decade. Section 6(b) allows the FTC to request information for studies that do not have a specific law enforcement purpose in order to evaluate the companies’ acquisition activities and to evaluate whether they are making anticompetitive acquisitions that fall below reporting thresholds. The announcement came following the conclusion of the hearings on Competition and Consumer Protection in the 21st Century, held between September 2018 and June 2019. The Commission approved the issuance of the Special Orders unanimously. Read more here.

Rep. Jordan (R-OH) Tapped to Become House Judiciary Ranking Member

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On February 6, 2020, the House Steering Committee selected Rep. Jim Jordan (R-OH) to replace Rep. Doug Collins (R-GA) as ranking member of the House Judiciary Committee, as Collins steps down to run for Georgia’s Senate seat. Rep. Collins and House Antitrust Chairman David Cicilline (D-RI) remain lead sponsors for H.R. 2054, the Journalism Competition and Preservation Act.  The legislation is still expected to go through regular order in the House this year, according to statements made by the Chairman, while the Senate version has gained co-sponsors and the Alliance supports regular order – a hearing and markup – in the Senate, as well.  Lawmakers are aware of the urgency, and the importance of ensuring passage of this legislation.

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News Media Alliance Hosts Congressional Meetings to Advocate for Passage of the Journalism Competition & Preservation Act - Read more