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DIGITAL ADVOCACY UPDATES
On August 9, the News Media Alliance released a statement following reports that Facebook is planning to license content from news publishers, including headlines and previews. In the statement, Alliance President and CEO David Chavern welcomes the news but notes the need for more details about the plans. In particular, the statement calls for more details about the scope, terms, and effects of the plans on news publishers. The statement also emphasizes the need to level the playing field between news publishers and the dominant online platforms by passing the Journalism Competition and Preservation Act in Congress. According to news reports, Facebook would pay publishers up to $3 million a year for licensing content for their news tab, planned to be launched in the fall. Read more about Facebook’s reported plans here and the Alliance statement here.
On August 6, the Chairman of the House Energy and Commerce Committee Frank Pallone, Jr. (D-NJ) and Ranking Member Greg Walden (R-OR) sent a letter to the U.S. Trade Representative Robert Lighthizer, expressing concerns about the inclusion of broad immunities for online platforms in the newly negotiated United States-Mexico-Canada Agreement (USCMA). Article 19.17 of the USMCA enshrines Section 230 of the Communications Decency Act for the first time in an international agreement. Section 230 has recently come under intense scrutiny in the United States as Congress is actively considering various issues, ranging from illegal opioid sales to hate speech, that may require changes to the online liability provisions. In their letter, Reps. Pallone and Walden note that including the provision in a trade agreement at this time is “inappropriate.” Read the letter here.
On August 6, the News Media Alliance and the California News Publishers Association asked news publishers to support amendments to the California Consumer Privacy Act (CCPA) to protect access to high-quality journalism in California. While the law, set to go into effect on January 1, 2020, offers clear benefits to Californians for protection of their personal information online, it would severely restrict news publishers’ ability to benefit from the online advertising ecosystem. Digital advertising provides vital means for publishers to survive in today’s increasingly digital news environment. The Alliance and the CNPA are therefore asking California publishers to contact their state legislators to express support for high-quality journalism funded through responsible advertising without undermining the overall goals of the CCPA. You can contact your state legislator by clicking here.
On July 31, Representative Mark DeSaulnier, one of the co-sponsors of H.R. 2054, the “Journalism Competition and Preservation Act,” participated in a panel on the big tech’s impact on local journalism in San Francisco, CA. The panel, organized by the Save Journalism Project, also included representatives from multiple news organizations. During his remarks, DeSaulnier noted the effect the demise of local news has on local politics and highlighted a bill he introduced earlier this year, H.R. 3126, the “Saving Local News Act,” that would make it easier for local publishers to become classified as nonprofits. He also argued that journalists should be to license their content in order to get paid when it is distributed on digital platforms. Laura Bassett, co-founder of the Save Journalism Project, noted the need for online platforms to share digital advertising revenues with publishers. Read more about the event here.
On July 30, the Senate Intellectual Property Subcommittee held a U.S. Copyright Office oversight hearing with the recently appointed Register of Copyrights Karyn Temple as the sole witness. During the hearing, Senator Thom Tillis (R-NC), Chairman of the Subcommittee, noted that he is planning on establishing a bipartisan and bicameral working group to examine Copyright Office modernization. The working group is expected to hold roundtables to gather stakeholder views in the fall. Senator Tillis indicated that the working group is likely to introduce legislation based on this feedback before the end of the year. Senator Tillis also expressed concerns over the autonomy and authority of the Copyright Office. Watch the oversight hearing here.
On July 29, the Court of Justice of the European Union (ECJ) found that website operators are liable for data protection violations that arise from the use of third-party widgets and plug-ins, such as Facebook’s “Like” and “Share” buttons. The case (C-40/17) was brought against a German online retailer Fashion ID that shared data with Facebook through a “Like” button embedded on its site. The ECJ held that publishers can be data controllers jointly with Facebook, and other similar plug-in creators, when using such widgets, and therefore liable for violations of the EU data protection rules. Publishers embedding social plug-ins must therefore seek user consent for the data transfer. The European General Data Protection Regulation (GDPR) came into force in May 2018 and sets stringent data protection standards for companies operating in Europe. Read more about the decision here.
On July 29, the Alliance asked our members to publish an op-ed and to reach out to their Members of Congress during the recess to express support for a limited, one-time safe harbor for news publishers to collectively negotiate with the dominant online platforms for a better deal. Earlier this year, lawmakers in both the House and the Senate introduced the Journalism Competition and Preservation Act that would help protect the future of high-quality journalism. The House bill, H.R. 2054, was introduced by Reps. David Cicilline (D-RI) and Doug Collins (R-GA), while the Senate version, S. 1700, was sponsored by Sens. John Neely Kennedy (R-LA) and Amy Klobuchar (D-MN). The Alliance is grateful to the original authors and hopes to build on the momentum to secure more co-sponsors for the bill. The op-ed by Alliance President & CEO, David Chavern, is available here.
On July 26, Representatives Paul Gosar (R-AZ), Mark Meadows (R-NC), and Steve King (R-IA) introduced a bill that would amend Section 230 of the Communications Decency Act to remove legal protections from online platforms that remove “objectionable” but not illegal content. The “Stop the Censorship Act” would retain the ability of online platforms to engage in good faith removal of illegal material and to provide filtering services for users. Currently, Section 230 provides online platforms with broad liability protections for third-party content. The House bill comes shortly after Senator Josh Hawley (R-MO) introduced his “Ending Support for Internet Censorship Act” that would require online platforms to be politically neutral. Read more about the House bill here.
On July 26, the Australian Competition & Consumer Commission (ACCC) published its long-awaited report on the impact of the dominant online platforms and aggregators on the media and digital advertising services. The report includes 23 recommendations to the Australian Government, including requiring platforms to treat news organizations fairly and to offer data and revenue sharing options. Danielle Coffey, Alliance Senior Vice President, Strategic Initiatives, and Counsel, commended the ACCC’s findings in a statement, noting that they reflect the “realities of the news business, not only in Australia, but around the world.” The statement also called on the Australian Government to act on the recommendations made in the Digital Platforms Inquiry. Read the Alliance statement here and the full report here.
On June 24, the Federal Trade Commission imposed a $5 billion penalty on Facebook, marking the largest penalty ever imposed on a U.S. company for consumer privacy violations. The settlement also includes other restrictions on Facebook, including requiring the company to reduce Facebook CEO Mark Zuckerberg’s control over consumer privacy decisions by establishing an independent privacy committee and strengthening external oversight of the company. The order also requires Facebook to monitor external apps more carefully. The agency’s two Democratic members voted against the settlement agreement. The settlement came the same day as the Securities and Exchange Commission announced a $100 million settlement with Facebook for misuse of user data. Read more about the FTC’s settlement here and the SEC’s settlement here.
On July 23, the Department of Justice announced that its Antitrust Division will launch an investigation into the dominant online platforms, including their market power and anticompetitive practices. The investigation will focus on concerns over the platforms’ search, social media, and online retail services, and seek input from the public and other industry participants. The investigation comes at a time when big tech companies are already under increased scrutiny in Washington. Read more about the DOJ’s announcement here.
Senate Banking, Housing and Urban Affairs Committee Holds Hearing on Facebook’s Proposed Cryptocurrency
The Senate Committee on Banking, Housing and Urban Affairs on July 16 held a hearing on Facebook’s proposed cryptocurrency, Libra, titled, “Examining Facebook’s Proposed Digital Currency and Data Privacy Considerations.” The head of Facebook’s currency project, David Marcus, gave testimony and answered questions about the necessity and usefulness of Libra, as well as privacy concerns related to Facebook’s previous data breaches and overwhelming control of user data. Senators also asked about Facebook’s impact on information and journalism. Senators Sherrod Brown (D-OH) and John Kennedy (R-LA) both questioned Marcus on Facebook’s “disruption” of the news business and its replacement of trusted information sources in many users’ lives. You can watch the full hearing here.
Senate Constitution Subcommittee Holds Hearing on Google’s Alleged Online Censorship of Conservative Voices
On July 16, the Senate Subcommittee on the Constitution held a hearing on Google and its affiliates’ alleged online censorship of conservative voices, titled, “Google and Censorship Through Search Engines.” Focused primarily on Google Search and YouTube, the hearing consisted of questioning of Google Vice President of Government Affairs and Public Policy, Karan Bhatia, by a panel of experts and self-described victims of Google’s censorship. Bhatia faced intense questioning from Republican Senators about Google’s algorithms and the role Google plays as a neutral public forum, while allegedly censoring conservatives. Democratic Senator Mazie Hirono (D-HI) focused her questioning on Google’s lack of proactive moderation when it comes to violent or hateful content. The Senators also discussed the role of Section 230 of the Communications Decency Act and the statute’s usefulness in the current digital ecosystem. You can watch the full hearing here.
On July 16, the House Committee on the Judiciary held a hearing on the impact of the tech giants on small businesses and entrepreneurs, titled, “Online Platforms and Market Power, Part 2: Innovation and Entrepreneurship.” The hearing, led by House Antitrust Subcommittee Chairman David Cicilline (D-RI), was a follow-up to a June 11 hearing titled, “Online Platforms and Market Power, Part 1: The Free and Diverse Press.” Witnesses included representatives from Google, Facebook, Amazon and Apple, as well as legal and economic experts who discussed the impacts of Big Tech on competing businesses. Among the issues discussed were the threats of digital piracy and copyright infringement on creators; the perceived lack of competition faced by the tech giants; and, briefly, the impact of Google and other digital giants on the news business. You can watch the full hearing here.
According to news reports, the Federal Trade Commission has voted to fine Facebook $5 billion for privacy violations following multiple well-publicized data breaches, including the Cambridge Analytica scandal. The agency reportedly approved the fine by a 3-2 vote. The fine, which will still have to be approved by the Department of Justice, is the highest levied against a technology company. The FTC has not yet confirmed the news. Read more here.
On June 27, the News Media Alliance released a statement calling for Google to rethink its planned changes to incognito mode in the Chrome browser. The statement comes following multiple reports that the next version of Google Chrome will remove the ability to detect when a reader is in incognito mode. This change would make it harder for news publishers to gain valuable subscribers in addition to limiting readers’ access to high-quality journalism. The statement notes the importance of finding ways to protect consumer privacy while also preserving news publishers’ ability to charge for access to their news products. Read the statement here.
On June 26, the House Committee on Homeland Security held a hearing on the role of online platforms in spreading terrorism content and misinformation. The hearing, titled “Examining Social Media Companies’ Efforts to Counter Online Terror Content and Misinformation,” featured witnesses from Facebook, Google, Twitter, and New York Law School. The discussion focused mainly on the online platforms’ efforts to remove and prevent violent content as well as deep fake videos. The platform representatives emphasized their ongoing efforts and indicated that they are a work in progress. Professor Nadine Strossen noted that although the companies are protected by the First Amendment, as private companies they do not have to follow it, stressing instead the importance of media education and the protection of free speech, including harmful speech, online. The hearing came after a hearing by the House Intelligence and Counterterrorism Subcommittee on artificial intelligence and counterterrorism and a Senate Commerce Committee hearing on the use of persuasive technology on online platforms on June 25. Watch the terror content and misinformation hearing here.
On June 26, the House Judiciary Committee held a Copyright Office oversight hearing with the newly appointed Register of Copyrights, Karyn Temple. The hearing was the first Copyright Office oversight hearing since 2014. Following opening remarks by the Committee Chairman Jerrold Nadler (D-NY) and Ranking Member Doug Collins (R-GA), focusing on the importance of the copyright-intensive industries to the U.S. economy and the Copyright Office in facilitating that, the Register gave a brief overview of recent developments at the Copyright Office. The hearing focused mostly on the Music Modernization Act as well as the recently introduced CASE Act that would create an alternative small-claims court for copyright owners. With regards to the Copyright Office modernization, Register Temple discussed the importance of the IT modernization efforts. She also stated that the Office expects to pilot the new recordation and public records systems next year, while the new registration system is currently in user interface development stage. Watch the hearing here.
On June 24, Senators Josh Hawley (R-MO) and Mark Warner (D-VA) introduced a bill that would require online platforms to disclose how they value and monetize user data. The bill, “Designing Accounting Safeguards to Help Broaden Oversight and Regulations on Data (DASHBOARD) Act,” would affect commercial data operators with over 100 million monthly active users. These platforms would be required to disclose the types of consumer data collected and the value of such data (including aggregate value), in addition to providing users with the right to delete data held on them. The bill follows Senator Hawley’s earlier Do Not Track Ad, introduced in May. Read the DASHBOARD Act here.
On June 19, Senator Josh Hawley (R-MO) introduced a bill, “Ending Support for Internet Censorship Act,” that would amend Section 230 of the Communications Decency Act. Adopted in 1996, Section 230 provides online platforms with a broad immunity from civil liability for all third-party content they publish. The law has recently become increasingly controversial due to various issues – ranging from illegal opioid sales to hate speech and election interference – Congress is grappling with that may require amending online platform liability protections. Senator Hawley’s bill would remove liability protections from platforms who fail to prove that they are politically neutral platforms. The bill would require online platforms – with the exception of small and medium-sized companies – to seek a certification from the Federal Trade Commission every two years. Senator Hawley’s bill comes following the inclusion of Section 230 immunities in the recently negotiated United States-Mexico-Canada Agreement (USMCA), which would enshrine such immunities for the first time in an international agreement. Read Senator Hawley’s bill here.
According to news reports, Senator Josh Hawley (R-MO) is planning to introduce a bill to amend Section 230 of the Communications Decency Act later this week. Section 230 provides online platforms with a broad immunity from civil liability for all third-party content they publish – including from claims of defamation, invasion of privacy, and misappropriation. Originally adopted in 1996 to protect startups operating in the nascent online ecosystem, Section 230 has recently become controversial due to its central role in facilitating various online harms, ranging from illegal opioid sales to hate speech and foreign election meddling. At the same time, the recently negotiated United States-Mexico-Canada Agreement (USMCA) would enshrine Section 230 in an international agreement for the first time, making any changes to it domestically more sensitive. Senator Hawley’s proposal would reportedly result in certain tech companies being treated as publishers, thereby making them more responsible for the content they publish. Read more about Senator Hawley’s proposal here.
On June 15, the Alliance filed comments with the Department of Justice (DOJ) regarding its Public Workshop on Competition in Television and Digital Advertising, held in May. The workshop was held to examine the dynamics involved in media advertising and determine what, if any, implications there were for antitrust and merger enforcement issues. The Alliance comments noted that advertising should benefit creators, advertisers and consumers, and that the DOJ look at the intermediary ad tech companies that cause a “bottleneck” in digital advertising, taking in more money and causing more friction between advertisers and publishers. Specifically, the Alliance recommended that the DOJ more closely scrutinize Google and its acquisitions, as it controls a disproportionate amount of the ad tech companies that stand between advertisers and publishers. You can read the Alliance’s full comments here.
On June 12, the Federal Trade Commission (FTC) held the last session of its hearings on Competition and Consumer Protection in the 21st Century. The discussions focused on consumer protection and antitrust enforcement issues as well as optimizing consumer protection remedies. The session also covered error-cost considerations and how those should affect the FTC’s agenda. The panels included Attorneys General from South Dakota, Louisiana, Tennessee, and Nebraska. Other participants included representatives of other Attorneys General, universities, and law firms. Prior to the hearing, the Attorneys General of 43 states filed comments with the FTC, proposing new ideas for merger enforcement in the online space. The comments called for requiring prior approval or notification for future acquisitions and taking non-price effects more into account in merger analysis. The Attorneys General also expressed support for increasing transparency in data collection and sale through legislative means. The FTC’s hearings were launched in September 2018 and consisted of 14 sessions on various topics. The Alliance filed comments with the FTC last August ahead of the first hearing, focusing on the impact of dominant online platforms on news publishers. Read more about the hearings here.
On June 11, the House Antitrust Subcommittee held a hearing on the role of dominant online platforms and the future of the news industry, titled “Online Platforms and Market Power, Part 1: The Free and Diverse Press.” The hearing was the Judiciary Committee’s first in their investigation into big tech antitrust issues. The witnesses included David Chavern (News Media Alliance), Gene Kimmelman (Public Knowledge), Sally Hubbard (Open Markets Institute), Matthew Schruers (CCIA), David Pitofsky (News Corp), and Kevin Riley (Atlanta Journal-Constitution). Most of the witnesses expressed support for the “Journalism Competition and Preservation Act” that would allow news publishers to collectively negotiate with the online platforms. Further, with the exception of CCIA, the witnesses also supported stronger antitrust scrutiny of big tech companies. Alliance President and CEO David Chavern noted the need for a solution for sustainable journalism as the current trends cannot continue, and that failing to take stronger action to protect news publishers across the country would pose a risk to the very fabric of our civic society. Read David’s full written testimony here and watch the full hearing here.
On June 11, the Alliance President and CEO David Chavern will testify in front of the House Subcommittee on Antitrust, Commercial and Administrative Law on the need to protect high-quality journalism through granting news publishers a safe harbor to collectively negotiate with the big tech platforms for a fairer deal. The hearing, “Online Platforms and Market Power, Part 1: The Free and Diverse Press,” is the House Judiciary Committee’s first hearing in their investigation into big tech antitrust issues. In his written testimony, Chavern outlines recent changes in the news industry and the online ecosystem, including the dominant position of the online platforms. The comments also highlight a new study released by the Alliance, showing that Google generated an estimated $4.7 billion in revenue from news content in 2018, and calls on Congress to adopt the recently introduced “Journalism Competition and Preservation Act.” The Act was introduced in the House in April by Antitrust Subcommittee Chairman David Cicilline (D-RI) and Judiciary Committee Ranking Member Doug Collins (R-GA) and in the Senate in June by Senators John Neely Kennedy (R-LA) and Amy Klobuchar (D-MN), Ranking Member of the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights. Read the Alliance written comments here and watch the hearing live at 2pm here.
On June 10, the Alliance released a study, containing analysis by strategy and economics consulting firm Keystone Strategy, showing that the amount of news in Google search results ranges from 16% of “most searched queries” and up to 40% for “trending queries.” The study also found that Google generated an estimated $4.7 billion in revenue from news content in 2018. The revenue estimate is conservative, and the actual figure might be higher, as many of the various ways Google benefits from news content are difficult to quantify, including the ad revenue and data Google gets from news sites. In response to criticism of the accuracy of the revenue numbers, Alliance President and CEO David Chavern pointed out that industry has been requesting transparency in Google’s numbers for years, and called on Google to share more accurate revenue data with the publishers and the public. The study comes as the House Judiciary Committee started its investigation into tech antitrust issues with its first hearing on the issue, titled “Online Platforms and Market Power, Part 1: The Free and Diverse Press,” on June 11. Read an executive summary of the Google study here and the full study here.
Alliance Urges Fourth Circuit to Protect News Publishers Against Political Advertising Disclosure Requirements
On June 7, the Alliance filed an amicus brief with the U.S. Court of Appeals for the Fourth Circuit in The Washington Post v. McManus, Jr. The case concerns a Maryland law that would subject news publishers to burdensome recordkeeping and disclosure requirements relating to online political ads. The District Court found the law unconstitutional on First Amendment grounds earlier this year, and the State of Maryland appealed. The amicus brief, joined by 17 other organizations, urges the Fourth Circuit to affirm the lower court’s decision. The brief reasserts that the Online Electioneering Transparency and Accountability Act is an unconstitutional, content-based regulation of free speech that is both over- and underinclusive and subject to strict scrutiny. The submission also notes that upholding the Act would degrade constitutional protections for both the internet as a whole and for news organizations that operate online. Read the amicus brief here.
On June 3, Senators John Kennedy (R-LA), Member of the Senate Judiciary Committee, and Senator Amy Klobuchar (D-MN), Ranking Member of the Subcommittee on Antitrust, Competition Policy and Consumer Rights, introduced S. 1700, the “Journalism Competition and Preservation Act,” in the Senate. The Senate bill is similar to H.R. 2054, introduced in April by Representatives David Cicilline (D-RI) and Doug Collins (R-GA) in the House. The bills would provide news publishers with a time-limited safe harbor to collectively negotiate with the dominant online platforms for a fairer deal. This bipartisan, market-based solution would ensure that news publishers can continue to produce high-quality content for years to come. The Alliance commends Senators Kennedy and Klobuchar for introducing this important bill and looks forward to working with members of both Chambers to pass it swiftly during this Congress. Read the Alliance press release on the Senate bill here and a Roll Call article on the bill here.
On June 3, the Alliance organized a congressional briefing on H.R. 2054, the “Journalism Competition and Preservation Act,” introduced in April by House Antitrust Subcommittee Chairman David Cicilline (D-RI) and the Ranking Member of the House Judiciary Committee, Rep. Doug Collins (R-GA). The briefing, attended by approximately 80 attendees, featured remarks by Reps. Cicilline and Collins as well as Axios co-founder Mike Allen and reporter Jonathan Swan. Their remarks were followed by a panel of industry and legal experts, including representatives from News Corp, USA TODAY, Daily Caller, and Paul Weiss. The panel examined the impact of dominant platforms on news publishers and how the bill would help address the imbalance and ensure the sustainability of high-quality journalism in the future. The panel was moderated by the Alliance President and CEO David Chavern. During the briefing, the Alliance also released a video supporting the bill. Watch the full video here.
On June 3, the House Judiciary Committee announced that it was launching an antitrust investigation of the tech industry, including an evaluation of the existing antitrust laws and enforcement. The investigation will focus on issues such as the online platforms’ impact on local journalism, consumer privacy, and competition. House Antitrust Subcommittee Chairman David Cicilline (D-RI) said that the Committee expects to hear from various tech executives during the investigation. The Committee’s investigation comes shortly after the Federal Trade Commission (FTC) and the Department of Justice (DOJ) indicated that they are placing the dominant online platforms under increased scrutiny, with the DOJ looking into Google and Apple, and the FTC being responsible for the oversight of Facebook and Amazon. The FTC is also expected to announce the conclusion of its investigation into Facebook’s privacy violations in the near future. Read more here.
On May 28, Google announced its first GNI Innovation Challenge in North America to support local news. The program, aimed at publishers in the United States and Canada, builds on other Innovation Challenges launched last year in other regions. The North American program seeks projects aimed at generating revenue or increasing audience engagement for local news. Applications will be evaluated by a panel, and the selected projects can get up to $300,000 to put toward project costs. The evaluation factors include knowledge sharing, impact on the news ecosystem, innovation, and feasibility. The application period opened on May 28 and applications are due by July 15. Read more about the Innovation Challenge here.
On May 13, the Supreme Court issued a decision holding that Apple users can sue the company for antitrust violations. The 5–4 decision allows a lower court case, alleging that Apple’s 30 percent commission on its iPhone App Store sales is an antitrust violation that inflates consumer prices, to proceed. The decision follows complaints from both users and app developers about Apple’s App Store commissions. In Europe, Spotify earlier filed an antitrust action against Apple for the same issue. The decision comes at a time when Apple is increasingly developing new services to compete with third-party apps, including Apple News+, Apple’s new subscription service which requires participating news publishers to share a substantial portion of revenue generated through the service with Apple. Read the Supreme Court’s full decision here.
Congress continued its hearings into consumer data privacy issues and the need for federal privacy legislation. On May 1, the Senate Commerce Committee held a hearing titled “Consumer Perspectives: Policy Principles for a Federal Data Privacy Framework.” The witnesses, including Helen Dixon (Irish Data Protection Commissioner), Neema Singh Guliani (ACLU), Jules Polonetsky (Future of Privacy Forum), and Jim Steyer (Common Sense Media), called for strong privacy protections that provide real and meaningful control to users. Commissioner Dixon indicated that Ireland has opened 12 significant investigations into U.S. tech companies following the enactment of the EU’s General Data Protection Regulation last year. Meanwhile, on May 7, the Senate Subcommittee on Financial Services and General Government held a hearing into the FTC’s budget request, during which Senators questioned the agency about potential federal privacy legislation as well as the FTC’s newly created high-tech task force. On the same day, Senate Banking Committee held a hearing titled “Privacy Rights and Data Collection in a Digital Economy,” during which Senator Mark Warner (D-VA) called for legislation to create real incentives for tech companies to change. On the House side, the Energy and Commerce Committee held an FTC oversight hearing on May 8, focusing on strengthening privacy and data security protections. FTC Chairman Joseph Simons noted that the agency would like to see federal legislation on consumer privacy, and that such legislation should provide the FTC with targeted rulemaking authority.
On May 7, the Alliance attended a meeting organized by Vishal Amin, the U.S. Intellectual Property Enforcement Coordinator, on the impact of recent European Union intellectual property developments on U.S. businesses. The meeting, attended by multiple stakeholder representatives from both the copyright community and civil society organizations, focused on the recently adopted EU Copyright Directive, in addition to the impact of GDPR on the ability of U.S. businesses to enforce their copyrights effectively. The Alliance expressed strong support for the Publishers’ Right created by the Directive. The meeting was organized to establish a dialogue between the government and the various stakeholders in order to better inform the administration about the impact of the developments and to examine next steps. The Director of the U.S. Patent and Trademark Office called on the stakeholders to find common ground on what clarifications to the Copyright Directive would be helpful.
On April 30, the French National Assembly’s Cultural Affairs and Education Committee unanimously approved the French version of the Publishers’ Right, implementing the recently passed EU Copyright Directive in national law. The French law requires an online platform to acquire an authorization from the news publisher prior to using its content online. The law also sets out factors to consider when determining the appropriate compensation amount. The bill, with further amendments, was approved by the full National Assembly on May 9. It has now been placed on the Senate’s agenda for a second reading. The EU Copyright Directive was formally adopted by the EU member states on April 15. The member states have two years to implement the Directive at national level. Read the French law here (in French).
On April 23, the California State Assembly’s Committee on Privacy and Consumer Protection voted favorably on multiple amendments to the California Consumer Protection Act (CCPA). The approved amendments include AB 874 (amending the definition of “personal information”), AB 846 (amending the discrimination provisions of the CCPA), AB 1355 (correcting drafting errors), AB 25 (amending the definition of “consumers”), AB 873 (amending the definitions of “personal information” and “deidentified”). These amendments would reduce legal uncertainty for publishers operating in California by clarifying and amending ambiguous and harmful provisions of the law. An amendment that would have largely rewritten the CCPA (AB 1760), including by requiring opt-in consent, was withdrawn at the request of the sponsor. The approved amendments were referred to the Assembly’s Committee on Appropriations before they go in front of the whole Assembly. Meanwhile, in the Senate, SB 561 (expanding the CCPA’s private right of action) was placed on the Appropriation Committee’s suspense file on April 29, making its passage less likely, while SB 753 (amending the definition of “sale”) was withdrawn from the Senate Judiciary Committee’s agenda on April 23. It is not clear if SB 753 will be rescheduled for hearing at a later date.
On April 15, the member states of the European Union officially adopted the long-awaited Copyright Directive, creating a Publishers’ Right in the EU. The Directive allows publishers to protect their content online against unauthorized uses, including by news aggregators. The Alliance played an active role in advocating for the Directive. Following the European Parliament’s vote on the Directive in March, and the Council’s approval last week, the Directive was reportedly signed on April 17. The member states will have two years to implement the Directive at the national level following its publication in the Official Journal. Read more about the Directive here.
The Alliance will meet with privacy advocates, including Alastair Mactaggart and Ashkan Soltani, to discuss issues related to the California Consumer Privacy Act. The meeting will focus on the CCPA’s potential effects on news publishers. As it currently stands, the CCPA would have significant impact on news publishers’ ability to benefit from digital advertising. The Alliance previously filed comments with the California Attorney General advocating for clarifications in the law. The Attorney General is required to publicize rules for implementing the CCPA by July 1, 2020. In addition to the AG’s rulemaking process, the California legislature is currently considering eight bills that would amend the CCPA. The Alliance is supporting a proposal that would amend the definition of “sale” to allow news publishers to financially support journalism.
The Department of Justice announced that it will hold a workshop from May 23 on advertising and antitrust enforcement and policy. The workshop will focus on television and online advertising, including the role of online and mobile ad networks. Assistant Attorney General Makan Delrahim will open the workshop. Panelists will include representatives from BIA Advisory Services, Breitbart, Facebook and Sinclair, among others. The panels will cover four distinct policy areas: television advertising, internet and mobile advertising, the competitive dynamics in media advertising, and trends and predictions. The event is open to the public with advance registration encouraged. Following the workshop, the DOJ will be accepting written comments on the issues covered until June 15. Read more about the workshop here.
On April 8, the U.S. Copyright Office organized the fifth roundtable in their ongoing Section 512 study, which evaluates the impact and effectiveness of the safe harbor provisions included in Section 512 of the Copyright Act. While the Section 512 safe harbors concern user-generated content, one of the roundtable panels focused more generally on international developments in online service provider liability. Alliance Senior VP, Strategic Initiatives, Danielle Coffey participated in the panel on international developments, drawing attention to the recently passed EU Copyright Directive, its effect on online platforms’ liability for infringing content and the need for effective enforcement mechanisms. Other speakers included representatives from Google, Facebook and other industry organizations. Read more about the Section 512 study here.
The Federal Trade Commission continued its hearings on April 9 and 10 on Competition and Consumer Protection in the 21st Century, with a hearing focused on the agency’s approach to consumer privacy. Participants included Alastair Mactaggart (Chairman, Californians for Consumer Privacy), Jason Kint (CEO, Digital Content Next) and representatives from other companies, public interest organizations and universities. They discussed the benefits of data collection and use for consumers, data minimization practices, and the existing and suggested legal frameworks for regulating consumer privacy. The participants also drew attention to the UK’s Online Harms White Paper. Watch the whole hearing here.
On April 8, the United Kingdom’s Department for Digital, Culture, Media and Sport and the Home Office released their long-awaited “Online Harms White Paper” that sets outs to tackle harmful content distributed by online platforms through the establishment of an independent watchdog and drafting of a code of practice. It also recommends giving the watchdog the right to fine non-compliant companies, potentially including company executives. Online platforms would be held accountable for a set of online harms, ranging from illegal content and activity to conduct that is harmful, but not illegal. At the same time, the U.S. Congress is continuing its hearings on hate speech and online censorship. On April 9, the House Judiciary Committee held a hearing titled “Hate Crimes and the Rise of White Nationalism,” where representatives from Google and Facebook stated that determining hate speech online can often be difficult. Meanwhile, the Senate Subcommittee on the Constitution held a hearing on April 10 on “Stifling Free Speech: Technological Censorship and the Public Discourse,” with representatives from Twitter and Facebook, among other witnesses. Elsewhere, Canada is reportedly considering regulating online platforms, Australia adopted a law aimed at violent content on social media, and New Zealand indicated it might follow Australia’s example.
On April 1, Facebook’s Mark Zuckerberg stated in a discussion with Axel Springer’s Mathias Döpfner that Facebook may start paying news publishers for the use of news content on the platform. According to Zuckerberg, Facebook is considering creating a separate news tab that would host high-quality news content based on direct relationships with the news publishers. Facebook is reportedly not planning on charging users to read the news, but instead opting to pay publishers from its own pocket. The announcement came a few days after the European Parliament adopted the Copyright Directive that will create a Publishers’ Right in the EU, allowing news publishers to protect their content online and negotiate licensing agreements with online platforms. Read more about Zuckerberg’s announcement here.
On April 3, House Antitrust Subcommittee Chairman David Cicilline (D-RI) and House Judiciary Ranking Member Doug Collins (R-GA) reintroduced H.R. 2054, the “Journalism Competition and Preservation Act,” first introduced in the last Congress. The bill would grant news publishers an antitrust safe harbor allowing them to come together to collectively negotiate with the tech platforms for more equitable terms. The safe harbor would last for four years, and allow news publishers to withhold content during the negotiations. The bill is supported by the American Society of News Editors (ASNE), National Newspaper Association (NNA), Association of Alternative Newsmedia (AAN), and 48 state press associations representing 49 states and the District of Columbia. The Alliance is continuing efforts to gain additional bipartisan support, as well as a companion bill in the Senate. Read all materials on the bill here.
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.
On February 14, the Alliance Digital Advisory Group — the Alliance’s hub for discussing issues related to the online ecosystem — held a video conference with Twitter on monetization issues. First, Twitter updated Alliance members on how sponsored tweets could potentially benefit publishers. A business can sponsor news content promoted on Twitter, with the revenue from the sponsored content split evenly between Twitter and the business, effectively giving the organization 1.5 times the value of the sponsorship. Twitter also discussed plans to develop a program for local news organizations to effectively monetize their content on the platform, called the Local News Monetization Program. The beta test participants for the Local News Monetization Program will likely be selected by the second quarter of 2019, and Twitter will share the learning outcomes with the Alliance.
On February 26, the Federal Trade Commission (FTC) announced that it will establish a task force to examine and lead enforcement efforts against anti-competitive activities by big tech companies. The move follows intense scrutiny of the FTC’s enforcement efforts and oversight by Congress. The task force is a part of the FTC’s Bureau of Competition and is composed of approximately 17 lawyers. It is modeled after the agency’s Merger Litigation Task Force, launched in 2002, and will be led jointly by Patricia Galvan and Krisha Cerilli. The FTC’s move comes after reports that Senator Lindsey Graham (R-SC) plans to create a task force of the Senate Judiciary and Commerce committees to examine online privacy, content and bias, among other issues. Similarly, the newly-appointed Attorney General William Barr indicated during his confirmation process that he would be interested in further examining the role of big tech companies. Read more about the FTC’s task force here.
On February 26 and 27, the House and the Senate held separate hearings on the need for federal approaches to consumer data privacy. The House Consumer Protection and Commerce Subcommittee’s hearing, “Protecting Consumer Privacy in the Era of Big Data,” featured panelists from both consumer and business advocacy organizations, including Color of Change, Interactive Advertising Bureau (IAB), American Enterprise Institute (AEI), Center for Democracy & Technology and Business Roundtable. The panelists, as well as many of the representatives, emphasized the need for federal privacy legislation. IAB’s Dave Grimaldi and AEI’s Dr. Roslyn Layton noted the need to ensure that such legislation does not stifle innovation or harm small businesses, drawing particular attention to the fact that more than one thousand U.S. news sites are not available in Europe because of the General Data Protection Regulation (GDPR). Meanwhile, in the Senate, the Commerce Committee’s hearing on “Policy Principles for a Federal Data Privacy Framework in the United States” featured speakers mainly from industry groups. All witnesses supported the creation of a federal privacy framework, with most panelists agreeing that the law should preempt state laws. Some panelists and Senators, including Ranking Member Maria Cantwell (D-WA), noted that the federal privacy protections should be comprehensive and meaningful. Watch the full recordings of the House hearing here and the Senate hearing here.
Following the deal reached between the European Parliament and the Council on the language of the proposed Copyright Directive — including Article 11, which would create a Publishers’ Right in the European Union — the Council approved the final version on February 20. Following the Council’s vote, the Parliament’s Legal Affairs Committee approved the deal on February 26. The compromise version of Article 11 sticks closer to the Council’s proposal, with “individual words and short extracts” falling outside the scope of protection. However, the negotiators inserted a sentence ensuring that the exclusion of short extracts is not interpreted to weaken the effectiveness of the Publishers’ Right. Following the votes in the Council and the Legal Affairs Committee, the Directive must now be approved by the full Parliament. The Parliament is expected to vote on the measure during its session from March 25–28. The Alliance will work with our European partners to help ensure the passage of the Directive. Read the Legal Affairs Committee’s press release on the Directive here
The Alliance LawView state legislation tracking tool now includes data privacy bills. The bills captured by the privacy tracker include the data privacy bills currently being considered in New York, Washington state, North Dakota and Massachusetts, among other states. Among the bills being considered is New York’s “Right to Know Act of 2019” (NY S 224 and NY A 3739), which would establish a right of access and regulate the information businesses must provide to residents of New York state. New York is also considering the “Stop Hacks and Improve Electronic Data Security Act (SHIELD Act)” and the “Personal Information Protection Act.” These bills would amend existing breach notification requirements and establish a personal bill of rights, respectively. Similarly, the “Washington Privacy Act” (WA SB 5376 and WA HB 1854) calls for transparency, individual control, respect for context, focused collection and responsible use, security, access and accuracy. In North Dakota, meanwhile, HB 1485 establishes consumer data protections and would define “personal information” to include browsing history and inferences drawn from other personal information. Massachusetts’s SD 341 would add a new “Consumer Data Privacy” section in the state’s code and establish access and notice requirements, in addition to a right to delete. These and other data privacy bills follow the passage of the California Consumer Privacy Act (CCPA) last year. The California Attorney General is currently conducting public forums in relation to the CCPA rulemaking process, with the next hearing scheduled for March 5. The AG’s office is also accepting written comments until March 8. Find out more about the rulemaking process here. To view the data privacy bills, visit the LawView State Legislation Tracker here and click on an individual state in the map or, under Issue Area, click on Privacy.
On February 7, the German competition authorities issued a decision prohibiting Facebook from linking user data it collects on its services and third-party sites with a Facebook account without explicit user consent. The competition regulator noted that the company’s existing procedures for collecting consent for such activities are not sufficient. The regulator also noted that Facebook’s unregulated collection and combination of user data has contributed to its dominant market position. The decision could affect Facebook’s recent decision to further integrate its Instagram, WhatsApp and Facebook Messenger services, in addition to its use of Like and Share buttons and the Facebook Login feature offered to external websites. Facebook has four months to comply with the order or risk fines of up to 10 percent of its annual revenues. The company also has one month to appeal the decision. Read the full decision here.
On February 13, the European Parliament and the Council reached a long-awaited deal on the proposed Copyright Directive, including Article 11, which would create a Publishers’ Right in the European Union. The compromise version of Article 11 sticks closer to the Council’s proposal, with “individual words and short extracts” falling outside the scope of protection. However, the negotiators inserted a sentence ensuring that the exclusion of short extracts is not interpreted to weaken the effectiveness of the Publishers’ Right. The right may also be available to non-European publishers. This is an excellent result for news publishers who worked diligently over the last few years to secure the inclusion of a strong and enforceable Publishers’ Right in the Directive. The negotiators, who have been meeting since October, reached the compromise just before the February 14 deadline. The text will now be translated and then both the Council and the full European Parliament will vote on the deal by April. The Alliance will continue working with our European partners to encourage the member states and the members of the European Parliament to adopt the Directive as soon as possible. Read the text of Article 11 here, and the Alliance’s statement on the final deal here.
On January 23, the Alliance held a video conference call with Facebook concerning the company’s investments in journalism, the “Today In” feature and the News Page Index. During the call, Facebook provided members with an update on the development of the “Today In” feature that allows users to see relevant news related to their local communities. Members raised the important issue of increasing subscriptions and advertising revenue through this new product. The call participants were also briefed on the News Page Index that Facebook will be using in the future to exempt news publishers from the political ads archive. Facebook encouraged news publishers to register for the Index in the next few months. The Alliance’s hub for discussing developments in the digital marketplace, the Alliance Digital Advisory Group, organized the call. Anyone interested in joining or learning more about the Digital Advisory Group can email email@example.com.
On Friday, January 18, the Council of the European Union canceled what was supposed to be the final negotiation meeting with the European Parliament and the European Commission to find a compromise agreement on the EU’s Copyright Directive. Article 11 of the Directive would create a Publishers’ Right that would, for the first time, give news publishers in the European Union the right to protect their original online content against unauthorized uses. The cancellation of the meeting came after the Member States were unable to agree on a new negotiation mandate for the Council, on an issue related to Article 13, which concerns online services such as YouTube. The Alliance continues to support Parliament’s version of the Publishers’ Right, which would provide a fair and clear standard that protects snippets — the Council must find an internal compromise to get closer to that standard. The trilogue negotiations are expected to be rescheduled as soon as the Council reaches a compromise on its position. In the meantime, the Alliance will continue to work for the inclusion and swift adoption of a strong version of Article 11.
On January 29, the House Judiciary Committee held its first hearing under the new Democratic leadership on H.R. 1, the “For the People Act of 2019.” The Act, addressing issues such as automatic voter registration, big money in politics, and ethics rules for public servants, also includes language replicating the “Honest Ads Act.” This subsection would require online platforms to maintain and make available for public inspection records of qualified political advertisements published on the platform. The Act does not include an exemption for news publishers, thereby imposing the same political record requirements on news publishers of a certain size who publish political ads. While the issue did not come up during the hearing, the Alliance will work diligently to either include an unequivocal exemption for news publishers or to revise the language so that the Act’s requirements do not impose undue burdens on news publishers. Read more about the bill here.
On January 29, Congressman David Cicilline (D-RI) recognized again the importance of ensuring critical access to trusted, high-quality news by committing to reintroducing the “Journalism Competition and Preservation Act.” The Act, originally introduced during the last session, would create a safe harbor for news publishers to negotiate together with the dominant tech platforms to find fair terms for the use of news content. Such terms would help flow earned subscription and advertising dollars back to the publishers, while preserving Americans’ right to access high-quality journalism. Considering the dominant role of the big tech platforms in the digital ecosystem, from digital ad markets to regulation of news, publishers need a stronger position to negotiate fair and equitable rules of the game. The Alliance published a press release in response to Congressman Cicilline’s announcement. Read the release here.
European Union negotiators are expected to meet for the last time on Monday, January 21, to reach a compromise agreement on the proposed EU Copyright Directive. The Directive includes Article 11, which would create a Publishers’ Right in the European Union, giving European news publishers the right to independently protect their content online. In advance of the January 21 negotiations, the Alliance sent out letters to the European Commission and the Council Presidency, as well as the European Parliament’s lead negotiator, to counter some of the claims and requests made by the tech community and to express support for the European Parliament’s version of Article 11. The Parliament’s version would create a clear and fair standard for the publishers and tech companies to follow, while the Council’s original position would undermine the Right considerably. The Alliance also recently published a rebuttal of Google’s misleading arguments Google is promoting as part of its “Together for Copyright” campaign. If the negotiators reach a compromise agreement, the Council and the Parliament are expected to vote on the measure by April, ahead of the European elections in May.
On January 15, the Alliance held a meeting between member news publishers and Google to find new ways of working together. Issues discussed at the meeting in Palo Alto, California, included the Google News Initiative, subscriptions, content distribution, YouTube and the future of audio news. The Alliance sought to find ways to flag and uplift original news content, both in search and AMP, and to achieve progress on Subscribe with Google and Propensity to Pay. Additionally, the meeting explored an economic model for news content on Google Assistant, YouTube monetization options for local content, and improved search rankings for news content. The Alliance’s Digital Advisory Group (the Alliance’s hub for discussing developments in the digital marketplace and finding collective solutions to common problems) helped to identify and prioritize these issues. This group will work on the common ground established at the meeting and update the working plan to find technical and monetary solutions for the news industry.