Digital Updates – January

On January 31, Google released a blog with “Questions and Answers” about Australia’s News Media Bargaining Code. A third of Google’s “answers” included reference to Google’s News Showcase as the solution for news publishers seeking compensation and proof of Google’s “commitment” to news publishers. The company continues to claim that the Australian Competition and Consumer Commission compensates news publishers for “link[ing] freely between sites” and will “break Google search.” Google continues to deny its well-documented use and abuse of news publishers’ content, to the detriment of citizens and the free press. This is the latest in a long line of Google’s retaliation against Australia’s News Media Bargaining Code. Read more here.

On January 22, in yet another attempt to discredit Australia’s upcoming Code requiring digital platforms to compensate news publishers for their content, Google released a blog listing eight “facts” about Google and the Code. These so-called facts include that the Code “breaks Google Search,” that Google is not responsible news publishers’ decline in revenue, and that “Google doesn’t ‘use’ news content.” The Alliance released a White Paper last year explaining how Google uses and abuses news publishers’ content through its dominant market power, tangibly hurting quality journalism. This blog comes after a disinformation campaign and an “experiment” removing Australian news from Google search. Read more here.

On January 21, Google officially signed an agreement to compensate a coalition of French publishers for Google’s use of their content. In a blog post, Google called the agreement a “major step forward” and a framework for all of Google’s future negotiations with publishers. This framework includes considerations like daily volume of publications, monthly internet traffic, and other contributions. The parties did not release the exact payment amount or details on how compensation was calculated. These agreements were mandated by the French Competition Authority, after the country passed a copyright law in 2019 granting news publishers a “neighboring right.” Read more here.

On January 15, Reuters reported that State Attorneys General are planning to file a third lawsuit against Google focusing on its Play Store for Android phones. The lawsuit is expected to be filed in February or March. Google’s policies include the ability to ban apps for objectionable content and requiring payments of up to 30 percent of the app’s revenue. A Google spokesperson said that Android phones are compatible with multiple app stores, giving app developers options if they disagree with Google’s terms. The Apple App Store, which is incompatible with Android phones, has also come under scrutiny by DOJ and developers. Read more here.

On January 15, WhatsApp announced it would delay its recent privacy policy update after users raised concerns about the app sharing data with its parent company, Facebook. Originally, users were required to consent to the policy by February 8 or their accounts would stop working. Users voiced their concern about the new privacy policy and exactly what information would be shared. WhatsApp has since walked back its original statement by pushing back the date users would have to review and accept the terms. The company’s latest announcement also claims that the update only includes “new options” to interact with businesses and increase transparency with data use and collection. This is an attempt at monetizing the app after failed attempts to do so in the past. Many users are already flocking to other messaging options, as competition increases. Read more here.

On January 13, the The Australian Financial Review reported that Google was adjusting algorithms to block Australian news sites, as part of an “experiment.” A Google spokesperson confirmed this report, saying that the adjusted algorithms would “reach about 1% of Google Search users in Australia to measure the impacts of news businesses and Google Search on each other.” This is Google’s latest retaliatory effort against the ACCC’s News Media Bargaining Code. The Google spokesperson told Guardian Australia that the experiments should finish by early February. A spokesperson for Nine—the publisher of the Sydney Morning Herald, the Age, and the AFR—called Google’s actions “a chilling illustration of their extraordinary market power.” Read more here.

On January 7, FCC Chairman Ajit Pai said in a C-SPAN interview that he no longer intends to move forward with the notice of proposed rule-making to clarify Section 230. He said he had insufficient time to complete the administrative process after the 2020 election. This comes three months after Chairman Pai’s original announcement that the FCC had the authority to interpret Section 230. Read more here.

On January 29, President Trump signed the newly negotiated United States-Mexico-Canada Agreement (USMCA) following the Senate’s adoption of the agreement on January 16 in an 89-10 vote and the House’s passage in December by a 385-41 vote. The agreement, replacing the North American Free Trade Agreement (NAFTA), was finalized between the three countries over a year ago but faced significant challenges due to concerns by the House Democrats who insisted on changes in some of the key provisions prior to passage. Despite last-minute efforts by Speaker Nancy Pelosi (D-CA), the final agreement still includes provisions similar to Section 230 of the Communications Decency Act that establishes broad liability immunities for online platforms for third-party content they publish. USMCA marks the first time such immunities are enshrined in a trade agreement. Before taking effect, USMCA must still be approved by the Canadian Parliament. Read more here.

On January 14, 2020, Google announced that it intends to phase out its support of third-party cookies within the next two years as part of its Privacy Sandbox initiative.  These changes will take place within Google’s Chrome browser, which is the dominant browser at 69% global market share, and could significantly impact the subscription and advertising revenue of news publishers. This change follows indications from Google that it would continue taking privacy-related actions. For example, Google’s changes to the Chrome browser’s incognito mode in July 2019 were said to be intended to protect consumer privacy, but instead the changes to the browser facilitated paywall circumvention and did nothing more to protect users’ privacy than before the changes were made. Google has stated that it plans to work with publishers, advertisers, and other relevant stakeholders to determine how the new policies will be developed and implemented. The Alliance is engaged in good faith efforts with Google to ensure any new policies benefit news publishers and to learn how the policies will impact news publishers’ business.

The Alliance submitted comments on January 10, 2020, to the U.S. Patent and Trademark Office (USTPO) regarding their request for comments on the impact of artificial intelligence (AI) on the protection of intellectual property. The comments focused on USTPO’s question regarding the ingestion of large volumes of copyrighted material for AI training purposes, and whether such use constitutes fair use and is adequately addressed by existing statutory language and case law. The Alliance comments noted the existential threat to the news industry posed by the unlicensed use of news content for AI training purposes, and argued that while the current case law provides protections for news content against such use, stronger enforcement is needed. The comments also emphasized the importance of fair use analysis, including the market effect unauthorized copying has on news publishers. While the current legal framework, properly understood and enforced, should provide adequate protections for news content, legislative solutions may be useful if that is not the case. Read the full comments here.

Facebook updated its privacy policy in preparation for the California Consumer Privacy Act (CCPA) to go into effect on January 1, 2020. Specifically, Facebook asserts itself as a Service Provider and that it does not share information other than for that specific Business Purpose as permitted by the statute. The policy also states that the publisher will remain solely liable for the publisher’s compliance with CCPA. The Alliance is concerned that, among other things, Facebook does not make clear they will not sell the personal information received from news publishers. If this policy stands, publishers have limited recourse, as they must do business with Facebook. The Alliance seeks to gain clarification by highlighting these concerns to Facebook as the law is now in effect and implementing regulations are expected to be released by the California AG before its July 1, 2020 deadline for guidance. Read the letter here.