Digital Updates – March

On March 25, the Federal Trade Commission (FTC) continued its hearings on “Competition and Consumer Protection in the 21st Century.” The two-day hearing was the 11th in the series and focused on the FTC’s role in a changing world. In his opening remarks, FTC Chairman Joseph J. Simons outlined the agency’s collaboration with its international counterparts and announced a new cooperation agreement with the United Kingdom on consumer protection matters. Panel discussions focused on topics ranging from consumer protection and privacy enforcement to artificial intelligence and the implications of different legal traditions for international cooperation. Matthew Boswell of the Competition Bureau of Canada, noted the Bureau’s 2013 inquiry into Google’s online search and advertising practices, and the role international cooperation played in that investigation. Watch the full FTC hearing here.

On March 26, the European Parliament voted to adopt the Copyright Directive by a vote of 348–274. The final Directive creates a Publishers’ Right that gives publishers the right to protect their news content from unauthorized commercial use. This is a major victory for news publishers in Europe, serving as a potential template for countries outside the European Union. The Council must now formally adopt the Directive, expected to occur in April. Once finalized, the EU member states will have two years to implement the Directive at the national level. We expect the right to apply to EU publishers, with additional steps necessary for U.S. publishers to benefit. Read the Alliance’s press release on the European Parliament’s vote here.

On March 25, Apple announced its news subscription service, Apple News+, providing users access to more than 300 publications for a set monthly price. The service includes various magazines, in addition to news outlets such as The Wall Street Journal, Los Angeles Times, and Toronto Star, optimized for reading on Apple devices. Apple launched the new service in the United States and Canada as a paid addition to the existing Apple News service, which will continue to be free for all users. According to reports, at least some news organizations are providing only a portion of their content through the service. Apple has calculated that subscribing to all of the publications available through Apple News+ would cost more than $8,000 per year, while the subscription cost for its service is $9.99 per month. Some publishers have expressed concerns over Apple’s reported requirement that it receive 50 percent of subscription revenues. Read more about Apple’s announcement here.

Over the last two weeks, Congress has continued its investigations into antitrust and privacy issues with multiple hearings by both the Senate and the House. On March 5, the Senate Subcommittee on Antitrust, Competition Policy, and Consumer Rights held a hearing titled, “Does America Have a Monopoly Problem? Examining Concentration and Competition in the US Economy.” During the hearing, multiple senators focused on the dominance of a few tech companies and their effect on the American economy and society. Meanwhile, on March 12, the Senate Judiciary Committee held a hearing on “GDPR & CCPA: Opt-ins, Consumer Control, and the Impact on Competition and Innovation.” In addition to Alastair Mactaggart, the Chairman of Californians for Consumer Privacy, witnesses in the first panel included representatives from Google, Intel, DuckDuckGo and Mapbox. Much of the discussion focused on Google’s data collection practices and the differences between opt-out and opt-in regimes. At the same time, Representative Greg Walden (R-OR) discussed the broad immunities afforded to online platforms by Section 230 of the Communications Decency Act during his opening remarks at a House Energy and Commerce Committee hearing on March 12, “Legislating to Safeguard the Free and Open Internet.”

On March 8, Senator Elizabeth Warren (D-MA) proposed breaking up the dominant tech companies — Amazon, Google, and Facebook, adding Apple to the list the following day. Under her plan, companies that offer an online marketplace and have an annual global revenue in excess of $25 billion would be classified as “platform utilities.” These companies would then be prohibited from owning both the platform and any marketplace participants. This would require separating, for example, Google’s ad exchange from its other businesses that interact with the exchange. The online platforms would also be prohibited from selling or sharing user data with third parties. Sen. Warren’s plan would create a private cause of action, in addition to empowering federal and state regulators. Smaller companies would also be required to engage in fair, reasonable and nondiscriminatory dealings, but they would not be prohibited from owning market participants. Read more about Senator Warren’s proposal here.

On March 8, the Alliance filed comments with the Office of the Attorney General of the State of California in response to its ongoing rulemaking process to implement the California Consumer Privacy Act (CCPA). The CCPA, which establishes new rights for consumers regarding the collection and sharing of their data, was adopted on June 28, 2018, and will take effect on January 1, 2020. In its comments, the Alliance commended the intent of the statute, while also outlining the significant negative consequences the CCPA will have on the freedom of the press and consumers in the absence of critical clarifications that the rulemaking and related industry guidance can provide. In particular, the comments note that the CCPA should prevent secondary uses of data when trusted first parties use that data for commercial activities that support quality journalism. Read the Alliance’s CCPA comments here.

On March 11, more than 250 organizations representing the news media industry, authors, composers, writers, publishers and other creative industries signed a letter urging the European Parliament to pass the Directive on Copyright in the Digital Single Market. Article 11 of the Directive would create a Publishers’ Right in the European Union, giving news publishers an independent right to protect their content online against unauthorized uses. The European Council and the Parliament reached a compromise deal on the Directive on February 13, and the Council adopted it a week later. The Parliament still has to vote on the Directive. The vote is expected to take place during the Parliament’s March 25–28 plenary session. The Alliance signed the joint letter and will continue to work with our European partners to ensure the adoption of the Copyright Directive. Read the joint letter here.