Digital Updates – September

On September 23, the DOJ submitted its proposed Section 230 changes to Congress. The legislation would make it more difficult for big tech to escape liability for content moderation, requiring an “objectively reasonable belief” that the content they remove falls into the new, explicitly-enumerated categories of allowable restrictions, replacing “otherwise objectionable” with “unlawful,” “promotes terrorism,” and “promotes self-harm.” The proposed changes would also allow platforms to remove content if its enforcement is in “good faith” and in compliance with its publicly available terms of service accompanied by a reasonable explanation. Additionally, the DOJ proposes carve-outs to incentivize platforms to address illicit content. This includes carve-outs for child abuse, terrorism, and cyber-stalking to allow victims to seek civil relief for their injuries. The DOJ also clarified that federal antitrust claims are not inhibited by Section 230. Read more here. 

On September 13, Google released its latest statement about its grievances with Australia’s newest proposed regulation to compensate news publishers. While Google again claims that they “simply help people find what they’re looking for on the internet,” their use and abuse of news publishers’ content is well documented. Google claims the Australian code is unworkable because of its data-sharing requirements and mandatory arbitration that it would be unable to appeal. Instead, Google suggests a negotiation model that is more favorable to them, despite the many checks the ACCC’s code has in place to ensure no disparity in treatment. This is not Google’s first attack on the code, and it continues to fight Australia’s attempt to correct the power imbalance between news publishers and big tech. Read more here.

On September 8, the ACCC announced that it is opening an investigation into “the extent of competition between Google and Apple’s app stores.” They will be informed by Australian consumers, developers, suppliers, and others’ experiences with the app stores. Because apps have become essential for many businesses and activities, the ACCC wants to ensure there is adequate competition and fairness for all parties. This inquiry will inform the ACCC’s final report in March 2021. The ACCC is accepting submissions until October 2nd. Read more here.

Following Facebook’s recent retaliation against the ACCC’s news media bargaining code, Australian Treasurer Josh Frydenberg refuses to back down, saying, “Australia makes laws that advance our national interest, and we won’t be responding to coercion or heavy-handed tactics, wherever they come from.” After the ACCC released its bargaining code, Facebook released a statement saying it would remove all news content from its platform if the code was signed into law. Google has also retaliated in the form of a misinformation campaign. Frydenberg sees the critical value in journalism and wants to support it by creating “a sustainable media environment” and “payment for original journalistic content.” Read more here.

According to news reports, Google and French news publishers failed to reach an agreement on compensation for the use of news content under the new Publishers’ Right adopted by the European Union last year. France is the first EU member country to have transposed the Publishers’ Right in national law. Following Google’s refusal to negotiate with the French publishers in late-2019, the French competition authority handed down an interim decision in April requiring Google to engage in good-faith negotiations and to reach a deal on compensation with the news publishers within three months. Google has appealed the interim decision, and a ruling on the appeal is expected in September. An organization of French publishers reportedly filed another complaint with the competition authority following the failure to reach a deal, claiming that Google had failed to negotiate in good faith. Read more about the situation here (subscription required).

On September 2, the News Media Alliance filed comments with the U.S. Copyright Office regarding state sovereign immunity in copyright suits. The Copyright Office is conducting a study into instances of state infringement of copyrights, in response to a request by Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT). The Senators asked the Copyright Office to conduct a study on the issue following a ruling by the Supreme Court in Allen v. Cooper earlier this year. The case concerned a North Carolina creator whose works had been used by the state without authorization. The Supreme Court found that the Copyright Remedy Clarification Act of 1990 did not validly abrogate state sovereign immunity in copyright suits, meaning that copyright owners cannot sue unwilling state entities for infringement. The Alliance comments focused on the systematic infringement of news articles by the California Public Employees’ Retirement System between 2009 and 2017, and the importance of Congress passing legislation that validly abrogates state sovereign immunity in copyright suits. Read the comments here.

On September 3, the News Media Alliance submitted comments in response to the European Commission’s public consultation on the proposed Digital Services Act package. The consultation is aimed at collecting views from stakeholders regarding the future of digital services in the European Union, including on issues related to online safety, freedom of expression, and competition in the digital marketplace. The Alliance shared with the Commission the White Paper on Google’s use of news content, released by the Alliance in June. The White Paper focuses on the ways in which Google abuses its dominant position to strong-arm news publishers and hurt high-quality journalism. The EU’s Digital Services Act will be aimed at updating the region’s legal framework for digital services, which has remained largely unchanged since the e-Commerce Directive was adopted in 2001. Read more about the Digital Services Act here and the Alliance’s White Paper here.

Facebook recently alleged that Apple’s new privacy policy will cripple efforts to offer personalized ads. These changes would require that app developers obtain users’ consent before they are able to track information used to deliver personalized ads. This policy is expected to roll out this fall with iOS14. If these privacy changes are put into effect, Facebook claims that many users will disallow tracking, and app owners will struggle financially because of the inability to effectively advertise. These changes could have ripple effects for news publishers’ ad revenue if a multitude of users opt out of personalized ads. Read more here.

On August 31, Facebook issued a press release saying that if the ACCC’s draft code becomes law, they will no longer allow publishers or consumers to share any news on Facebook and Instagram. Facebook alleges that the regulation “misunderstands” the bargaining imbalance and ignores important facts. The ACCC released a statement the next day condemning Facebook’s threat to ban all news content. The ACCC reiterates that the Code is designed “to bring fairness and transparency” to the relationship between news publishers and Facebook. They further cited the University of Canberra’s 2020 Digital News Report, saying that 39 percent of Australians use Facebook for general news, and 49 percent use the platform for news about COVID-19. Read more here.