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DIGITAL ADVOCACY UPDATES
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 13, 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 Financial Review — called Google’s actions “a chilling illustration of their extraordinary market power.” 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 December 18, a bipartisan group of Senators sent a letter to U.S. Trade Representative Robert E. Lighthizer, requesting that the administration not include broad online liability protections in the potential U.S.-UK trade agreement. The letter, signed by Senators Mark Warner (D-VA), Richard Blumenthal (D-CT), Rob Portman (R-OH), and Chuck Grassley (R-IA), notes that both the United States Congress and the United Kingdom are currently engaged in extensive reviews of their online liability regulations and that including a safe harbor clause would be “inappropriate” and “frankly unhelpful.” Multiple members of Congress have recently proposed amendments to Section 230 of the Communications Decency Act that protects online platforms from liability for the third-party content they publish, thereby facilitating various online harms. The administration included language similar to Section 230 in the recently negotiated United States-Mexico-Canada Agreement (USMCA), in addition to the negotiating objectives for the U.S.-UK agreement.
On December 20, Congress expanded government loan forgiveness to local news outlets in the proposed COVID relief bill. House Speaker Nancy Pelosi (D-CA) and Senate Democratic Leader Chuck Schumer (D-NY) released a joint statement praising these “key modifications to PPP” that expand eligibility for “local newspapers, TV and radio broadcasters.” Facing falling adverting revenues, many local news outlets are struggling. Their inclusion in the relief package is pivotal for preserving a diversity of voices in news and delivering high-quality information to citizens. Read more here.
On December 17, a bipartisan coalition of 38 states filed a complaint in the U.S. District Court for the District of Columbia alleging Google used its market power to thwart competition. The lawsuit alleges that Google leveraged its market power to favor its own webpages and products violating antitrust laws. This is the third lawsuit against Google, following the DOJ’s antitrust suit and the Texas-led lawsuit targeting Google’s advertising practices. The coalition filed the complaint with a motion to consolidate the case with the DOJ’s recently filed lawsuit against Google. Read more here.
On December 16, 10 states filed a complaint in the District Court for the Eastern District of Texas Sherman division alleging that Google illegally monopolized products and services that publishers used to advertise. The complaint further alleges that Google’s anticompetitive practices kept publishers from properly monetizing their content. The lawsuit is led by Texas Attorney General Ken Paxton. Read more here.
On December 9, the FTC announced that it will sue Facebook for violating antitrust law along with 46 states’ attorneys general. The complaint, filed in the United States District Court for the District of Columbia, alleges that “Facebook has engaged in a systematic strategy … to eliminate threats to its monopoly,” violating Section 2 of the Sherman Act. This strategy included buying out competitors like Instagram and WhatsApp. This lawsuit comes less than two months after DOJ filed its lawsuit against Google for engaging in illegal monopolistic behavior. Read more here.
Australian Government Introduces Legislation Establishing Mandatory Code of Conduct for Online Platforms
On December 9, the Australian government published its proposed legislation to create an enforceable code to require online platforms to pay news publishers for their content. The law will codify the Australian Competition and Consumer Commission’s (ACCC) draft code released earlier this year, reportedly with some changes. The code requires Google and Facebook to negotiate with news publishers, individually or collectively, for compensation. If the parties are unable to find a compromise agreement, the code establishes an arbitration procedure, managed by an independent arbitrator. According to news reports, the code will initially only apply to Facebook News Feed and Google Search, although it may be expanded in the future. The legislation has now been sent to Parliament, which will have to approve it before it enters into force. Read more here.
On December 2, Google announced that it would start giving consumers access to paywalled content. Google will pay participating publishers for Google News Showcase users’ access to paywalled content. Google News Showcase launched two months ago in limited countries and Google hopes to continue expanding to more countries. It is not yet live in the U.S. Read more here.
On November 30, Facebook announced it would pay some UK publishers for their content. Facebook will hire contractors to select the main stories of the day from mainstream outlets to appear in its News Tab. Facebook has not said how much they will be paying publishers. UK news publishers hope that the Facebook News Tab will be another step toward compensating news publishers for their content and bringing trustworthy journalism to Facebook users. Read more here.
On November 27, the Select Committee on Communications and Digital of the House of Lords of the United Kingdom published a report titled “Breaking News? The Future of UK Journalism.” The comprehensive report outlines the UK news media landscape before making multiple recommendations, ranging from building media literacy to improving job prospects in journalism, and addressing the imbalance of power between news publishers and online platforms. Noting the “dysfunctional online advertising market,” the report urges the Government to establish a Digital Markets Unit and to include a mandatory bargaining code, modelled after Australia’s proposed code, in the Online Harms Bill. Read the full report here.
UK Government to Develop a Code of Conduct and Establish a Digital Markets Unit to Regulate Online Platforms
On November 27, the UK Government released its responses to the Competition and Markets Authority’s (CMA) study on online platforms and digital advertising, published in July 2020. In its response, the Government accepted the CMA’s findings and recommendations and committed itself to the introduction of an enforceable code of conduct for online platforms and to establishing a Digital Markets Unit (DMU) within the CMA. The code of conduct would be aimed at protecting competition online, with the Government’s response noting that the code should also include provisions governing the relationship between the online platforms and the news media, as recommended in the Cairncross Review. The DMU, to be established from April 2021, will introduce, maintain, and enforce the code. Meanwhile, the Government has commissioned the Digital Markets Taskforce to advise it on the development of the code. According to news reports, legislation is expected in 2022. Read the more here.
On November 19, Google entered into a copyright agreement with six French publishers to compensate them for their content. The agreement comes after a court ordered Google to begin negotiations with French publishers to pay them for the use of publishers’ work product. This news comes as Google continues to attack Australia’s proposal requiring Google to fairly compensate Australian publishers through its News Media Bargaining Code. Read more here.
On November 10, Nathan Simington, Trump’s nominee to replace FCC Commissioner Michael O’Rielly, was questioned by Senators at a nominations hearing. Nathan Simington is a Senior Adviser at the National Telecommunications and Information Association, which petitioned the FCC for rulemaking on clarifying Section 230. Senators questioned Simington about his role in the petition for rulemaking, which he said was only helping with editing and public relations. Senator Richard Blumenthal (D-CT) claimed that Simington “acted as an arm of the president.” Simington testified that he ceased involvement in the petition when he knew he was being considered for the Commissioner opening, but he did say that he believes Section 230 needs to be reformed. Simington testified that he would follow the FCC’s ethics counsel recommendations for recusing himself on a vote about the Section 230 rulemaking. Read more here.
On October 27, Senator Maria Cantrell (D-WA), Ranking Member of the Senate Commerce Committee, released a report on threats to local news in today’s digital landscape. It explains how Google and Facebook have created a crisis for local news, whose revenues have been swiftly decreasing because of the platforms’ abuse of their dominant positions in the market. This report cites to the Alliance’s White Paper for examples of such abuse at the expense of news publishers. The report also contains multiple recommendations for addressing this threat to the free press, including giving publishers the ability to collectively negotiate for better terms with the tech platforms. This bargaining power would be made possible by passing S. 1700, the Journalism Competition and Preservation Act. Read more here.
On October 21, News Media Canada released a statement on behalf of Canada’s news publishers calling on Parliament to address Google and Facebook’s excessive market power. Because Google and Facebook control the majority of advertising revenue, news publishers’ bottom line is at the mercy of big tech. With this imbalance of power, an effective and independent press is being challenged by big tech’s monopolistic practices. These two platforms “cannot continue to be allowed to free-ride on the backs of Canadian news media publishers who produce news content, without fair compensation.” The statement offered Australia’s new bargaining code as a model for compensating news publishers. Read more here.
On October 20, the Department of Justice (DOJ) and 11 state Attorneys General filed a lawsuit against Google in the District Court for the District of Columbia for allegedly violating antitrust laws under Section 2 of the Sherman Act, in hopes of restoring competition in search and search advertising markets. The complaint alleges that Google has a “search monopoly” and has “foreclosed competition for internet search.” This means that any “competitors are denied vital distribution, scale, and product recognition — ensuring they have no real chance to challenge Google.” Attorney General William Barr said that the lawsuit “strikes at the heart of Google’s grip over the internet for millions of American consumers, advertisers, small businesses and entrepreneurs beholden to an unlawful monopolist.” Google released a statement calling the DOJ’s actions “a deeply flawed lawsuit that would do nothing to help consumers.” The Alliance’s statement on the lawsuit can be found here. Read more here.
On October 15, FCC Chairman Ajit Pai released a statement saying that “the FCC has the legal authority to interpret Section 230” and the FCC will “move forward with a rulemaking to clarify its meaning.” President Trump issued an Executive Order in May asking the FCC to “expeditiously propose regulations to clarify” Section 230. In June, four GOP leaders asked the FCC to “clearly define the framework under which technology firms, including social media companies, receive protections under Section 230.” In July, the Commerce Department filed a petition for rulemaking to clarify Section 230. There is not yet a timeline for the rulemaking process. Read more here.
On October 13, the Supreme Court denied cert to a case implicating Section 230, but Justice Thomas released a statement stressing the importance of walking back the broad Section 230 immunity that lower courts have granted. Justice Thomas detailed how the courts eliminated both publisher and distributor liability, despite many indicators that such broad immunity was not a part of the statute. Instead of protecting a small and emerging internet, Section 230 now grants “sweeping immunity on some of the largest companies in the world.” Limiting this immunity “would not necessarily render defendants liable for online misconduct. It simply would give plaintiffs a chance to raise their claims in the first place.” Read more here.
Google is delaying Australia’s inclusion in its latest news resource, after the ACCC announced its mandatory news media bargaining code requiring Google to fairly compensate news publishers. Since then, Google has spread misinformation about the Code and released a statement condemning the code. The ACCC remains firm in its position that news publishers deserve to be compensated for their content, and the Code should take effect to correct Google’s use and abuse of that content. The Australian Parliament still needs to pass the final legislation before the Code will take effect. Read more here.
On October 8, a French appeals court ruled against Google, requiring them to negotiate with news publishers to pay them for their content. Prior to this ruling, reports indicate a deal was tentatively struck with a French news publishers association for 25 million Euro per year as a payment from Google to publishers. This holding affirms France’s competition regulator’s April decision, also directing Google to negotiate with news publishers. France is the latest country to take issue with Google’s disproportionate bargaining power and seek to correct it. Read more here.
House Antitrust Chairman David Cicilline (D-RI) and the House Subcommittee on Antitrust, Commercial, and Administrative Law concluded their year-long, bipartisan investigation of big tech’s market power by releasing their comprehensive report. The report discusses the online platforms’ anticompetitive actions against news publishers and how that abuse harms publishers’ ability to produce quality journalism for the public. The report and multiple witnesses expressed support for H.R. 2054, the Journalism Competition and Preservation Act, which would allow news publishers a limited window in which to negotiate collectively with the online platforms for fair compensation. Other recommendations to address anticompetitive practices include structural separations and prohibitions of certain dominant platforms from operating in adjacent lines of business and presumptive prohibition against future mergers and acquisitions by the dominant platforms. Both Google and Amazon have released statements suggesting that company break-ups would be bad for consumers. Read more here.
On October 1, the House Antitrust Subcommittee held the last of seven hearings to investigate Google, Facebook, Amazon, and Apple for possible antitrust violations. The witnesses clashed over what Congress should do, with some suggesting major overhauls of antitrust law and others saying antitrust laws do little to prevent anticompetitive practices. Committee Chairman David Cicilline (D-RI) said that each tech company served as a “gatekeeper” with significant market power, allowing for anticompetitive behavior. Rep. Cicilline will be releasing a report on the investigation as early as this week. Read more here.
On October 1, the Senate Commerce Committee voted to issue subpoenas to Facebook CEO Mark Zuckerberg, Twitter CEO Jack Dorsey, and Google CEO Sundar Pichai if they do not agree to testify voluntarily. The CEOs will testify about Section 230 and the potentially destructive immunity shield it gives big tech to take advantage of its market power with no accountability. The vote was unanimous, but the time of the meeting has yet to be announced. Read more here.
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.
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.
On August 26, The Australian reported that Google is suspected of using “scare tactics” to push back against the recent passage by the Australia Competition & Consumer Commission’s (ACCC) mandatory bargaining code to fairly compensate news publishers. Both Senators and Members of Parliament have received thousands of emails, all with the same message condemning the bargaining code. These messages are apparently sourced from an anonymous Change.org petition with over 40,000 signatures calling the Code an “assault on Australia’s democracy.” A Google spokesman said they have been informing users, creators, and partners about the law, but they are “not involved with this petition or email campaign in any way.” Read more here.
Google is supposed to implement a new “heavy ad blocker” in late August, according to a Google official’s activity on a Chromium message board. Google defines a heavy ad as any ad that a user hasn’t interacted with that uses the main thread for more than 60 seconds in total, uses the main thread for more than 15 seconds in any 30-second window, or uses more than 4 megabytes of network bandwidth. Google explains that this update is “to be fast and responsive without harmful or annoying experiences,” to comply with the Coalition for Better Ads “Better Ads Standards,” and to protect against “abusive experiences.” This comes as tension continues to rise with Google’s unwillingness to compensate news publishers in Australia. Read more here.
On August 20, Digital Content Next (DCN) sent a letter to Apple CEO Tim Cook asking about better terms for revenue sharing from digital subscriptions to news publishers’ content through Apple’s App Store. DCN represents a broad variety of news publishers, including NPR, The New York Times, USA Today, and The Washington Post. For any subscriptions through iOS apps, Apple takes 30 percent of the revenue and then 15 percent after the subscriber’s first year. DCN points out in its letter that Amazon has received much more favorable terms from Apple, allowing it to generate more revenue. The letter requests Apple share what terms Amazon met to receive a more favorable revenue split so that news publishers could potentially receive the same. Read more here.
The Wall Street Journal reported that some Department of Justice (DOJ) staffers are concerned that the lawsuit against Google is not ready to be filed, despite Attorney General Barr hoping to file by the end of the summer. While the DOJ has dozens of attorneys working on the matter, they are worried about vulnerabilities in the high-profile case. Senior officials are still adamant about the quicker timeline, with some suggesting they may try to file before the election. Read more here.
Google released an open letter to Australians claiming that the Australia Competition & Consumer Commission’s (ACCC) draft news media bargaining code threatens consumer data privacy, the accuracy of search results, and the ability of Google and YouTube to remain free services. The Guardian reports that Google is targeting Australian consumers with ads that take them to the open letter. The ACCC released a statement saying Google’s open letter contains misinformation and correcting the errors. The statement makes clear that Google will not be required to charge for its services or share any additional user data with news businesses. Instead, the ACCC argues, the draft code simply allows Australian news publishers to negotiate for fair compensation for their content. Google invoked similar strategies in 2011-2012 to protest the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA). The ACCC says they “will continue to consult on the draft code with interested parties, including Google.” Read more here.
On July 31, the Australian Competition & Consumer Commission’s (ACCC) released its mandatory News Media Bargaining Code to correct the power imbalance between big tech and news publishers. The Code ensures publishers’ ability to be meaningfully compensated for news content through their negotiations with Google and Facebook that will result in forced arbitration after three months if an acceptable business arrangement cannot be reached. It provides that financial materials must be shared on demand to determine the adequate remuneration and prevents Google or Facebook from removing content as an alternative to payment. The draft Code also requires digital platforms to disclose algorithmic changes and other unilateral decisions that could affect news publishers’ bottom line. The ACCC is accepting comments on the draft Code until late August, after which the Australian Parliament will have to pass the final legislation before the Code can take effect. Read more here.
Congressional leaders and the White House are continuing their discussions on the next stimulus bill, including an extension of the Paycheck Protection Program (PPP). Both the Health, Economic Assistance, Liability Protection and Schools (HEALS) Act released by the Senate Republicans earlier this week and the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act passed by the House in May include an extension of the PPP. The latter included an Alliance ask to include a waiver of the PPP for news organizations who are currently ineligible because their owner also has other small newspapers or non-news businesses. Senator Chuck Schumer (D-NY), who is negotiating with the Republicans, is supportive, having co-sponsored the Local News and Emergency Information Act of 2020 which would create such a waiver. The Alliance is also working to support Senator Maria Cantwell (D-WA) and who has been a leader on this effort. The NewsGuild-CWA Union reportedly also approached Leader Mitch McConnell (R-KY) and Senator Schumer on the issue, and other labor unions are expected to follow. A main driver, the unemployment benefits that are ending on July 31, remain unresolved and the Senate just adjourned until Monday without reaching a deal. We’ll continue to advocate for our asks for news publishers and will keep you updated on developments.
On Wednesday, the CEOs of Amazon, Apple, Facebook, and Google all testified before the House Judiciary Committee’s Antitrust Subcommittee on Antitrust as part of the Subcommittee’s investigation into the anticompetitive practices of online platforms. The hearing was the sixth hearing in the bipartisan investigation, originally launched last year by the Chair of the Subcommittee David Cicilline (D-RI) and then-Ranking Member Doug Collins (R-GA). Our safe harbor bill, the Journalism Competition and Preservation Act, was the first focus of these series of hearings in which the News Media Alliance testified. During the hearing, several representatives questioned the CEOs on issues that the Alliance highlighted in our recent White Paper. Specifically, Representative Pramila Jayapal (D-WA) compared Google’s ad exchange to a stock market but with no regulation, allowing Google to abuse its market power at the expense of journalists. Google CEO Sundar Pichai was adamant that Google is “deeply committed to journalism” and that its business with news publishers remains a “low margin business for us,” but did not address the control over ads without accountability or the increasing ad revenue for Google-owned sites at the expense of websites not owned by Google. More highlights below in the video reel created by our comms team. The Alliance is following the investigations into the online platforms closely and will continue to advocate for the safe harbor as a critical solution to the problem caused by the platform’s anticompetitive conduct. You can watch highlights of the discussion of journalism during the hearing here. You can watch the full hearing here.
On July 30, French and German news publishers announced that they were working together to form a new joint venture to license news content to online platforms under the EU’s recently adopted Copyright Directive. Article 15 of the Directive created a so-called Publishers’ Right, allowing news publishers to protect their content online against unauthorized use by the online platforms. The French and German publishers are working through VG Media in Germany and l’Alliance de la presse d’information générale in France and expect the new licensing company to be available to all European publishers once established. France became the first country to transpose the Publishers’ Right into national law in July 2019. After Google refused to pay French publishers, the French competition authority issued an interim order in April 2020 requiring Google to negotiate with the publishers for compensation. While Google reportedly (link in French) appealed the order in early July, requesting for more details on “certain elements of the decision,” the head of the competition authority said on July 9 (link in French) that the negotiations were ongoing and that the authority was hoping to see some results in late-July or August.
Following multiple efforts to reform Section 230, including the President’s Executive Order, DOJ study, and other legislation, Senators Brian Schatz (D-HI) and John Thune (R-SD) introduced the bipartisan Platform Accountability and Consumer Transparency (PACT) Act in late June. The PACT Act would require platforms to respond to consumer complaints about content moderation and publish reports to foster transparency. The Senate Subcommittee on Communications, Technology, Innovation, and the Internet held a hearing on July 28 on the bill, where Senator Roger Wicker (R-MS) suggested amending the definition of “otherwise objectionable” content in Section 230 in order to narrowly define big tech’s immunity. Senator Jon Tester (D-MT) brought attention to the liability disparity for paid ads between broadcasters and digital platforms, and Senator Ted Cruz (R-TX) expressed concerns over lack of liability for promoting certain content they happen to agree with. There remains strong bipartisan support to reform Section 230, and multiple bills about Section 230 remain active. The Alliance is following all developments regarding Section 230 closely, including its potential inclusion in trade agreements such as the U.S.-UK agreement that is currently being negotiated between the two countries. You can watch the full hearing here.
On July 27, the Australia Competition & Consumer Commission (ACCC) began a proceeding against Google for allegedly misleading Australian users into giving consent for broad data collection. The ACCC alleges that Google did not obtain users’ “explicit informed consent” to combine personal data linked to a Google account with data about activities on non-Google sites. The ACCC claims Google used this combined information to improve its advertising business, which is its primary source of revenue. Read more here.
On July 2, the bipartisan “EARN IT Act,” which is aimed at eliminating the sexual exploitation of children on the internet by imposing restrictions on big tech’s Section 230 immunity, unanimously passed the Senate Committee on the Judiciary. Committee Chairman Sen. Lindsey Graham (R-SC) said no social media company is doing enough to protect children, and they should have liability like everyone else in America. Before passing, the Committee accepted an amendment by Sen. Patrick Leahy (D-VT) that excludes encryption from being grounds for increased liability. The bill will now be presented on the Senate floor. Read the bill here.
California Attorney General Xavier Becerra’s enforcement of the California Consumer Privacy Act (CCPA) began on July 1, despite numerous requests for it to be postponed. The guiding regulations are not yet official, but the statute itself can be enforced. Meanwhile, Alastair Mactaggart, of Californians for Consumer Privacy, which advocated for the CCPA, is now proposing the California Privacy Rights Act (CPRA), a ballot initiative to expand CCPA. The CPRA would create a new enforcement agency and require more business disclosures, among other measures. Read more here.
On July 1, the United Kingdom’s Competition and Markets Authority (CMA) released its final market study report on online platforms and digital advertising. The study, launched in July 2019, focused on Google and Facebook’s dominance of the digital advertising marketplace. The findings and recommendations in the final report follow closely those identified in the CMA’s interim report published last December. The report’s findings highlight, among other things, the competitive advantage Google and Facebook enjoy due to their extensive access to user data; how the online platforms interpret data protection laws and regulations to benefit them; and concerns arising from vertical integration in the digital ad markets. In order to address the concerns identified in the report, the CMA recommends the establishment of a Digital Markets Unit with powers to develop, oversee, and enforce a code of conduct and to take other necessary actions, including data-related interventions. The report also raises the prospect of separation interventions to address vertical integration concerns. While the CMA refuses to launch a full market investigation into the digital ad markets, the report indicates that it is considering possible enforcement actions. The report also discusses the Digital Markets Taskforce, designed to advise the government on digital competition issues, that CMA will be leading. Read the full report here.
On June 30, Facebook announced that original reporting with transparent authorship would be ranked higher in users’ News Feeds. Facebook hopes that by boosting original sources, it will give more traffic and revenue to trusted news publishers. Facebook will also demote any articles that do not list authors or lack transparency about the editorial staff. Facebook has provided a guide explaining how news publishers are ranked in the News Feed. Facebook hopes these changes will demote unverified sources and promote ethical journalism. Read more here.
On June 30, the New York Times announced its content will no longer appear on Apple News, starting July 6. The Times reports that it could not accomplish its goal of reader engagement and building subscribers while being part of Apple News. The announcement comes as scrutiny of big tech’s control of ad revenue and business models that negatively affect news publishers is growing. Read more here.
On June 25, Google published a blog with its plan to start a “licensing program to support the news industry.” The program is supposed to “help participating publishers monetize their content through an enhanced storytelling experience.” Google will start by allowing a small number of publishers in specific countries to participate in the program, with plans to expand. Read more here. Google has also made claims that they help news publishers build audiences and provide compensation to news publishers by driving traffic to their websites — a claim the Alliance debunks in its White Paper.
On June 17, Senator Josh Hawley (R-MO) proposed the “Limiting Section 230 Immunity to Good Samaritans Act,” requiring digital platforms to fulfill their duty of good faith to receive Section 230 immunity. The bill would allow users to sue tech companies for breaching a “contractual duty of good faith.” This good faith would require non-discriminatory enforcement of their terms of service and “filing to honor their promises.” The bill was co-sponsored by Senators Marco Rubio (R-FL), Mike Braun (R-IN), and Rom Cotton (R-AK). Read more here.
On June 17, the Department of Justice (DOJ) proposed changes to the Section 230 immunity that big tech currently enjoys. It includes requiring the platforms to more proactively address illicit content, as well as requiring consistency in removing objectionable material. This proposal would go through the Office of Management and Budget to be the official administrative position before requiring Congressional legislation. Read more here.
On June 16, Gallup and the Knight Foundation released a poll showing that eight out of every 10 Americans don’t trust big tech to moderate content on their platforms. Despite over 80 percent of respondents favoring the removal of false or misleading information about elections or health issues, they don’t trust the digital platforms or the government to decide what to remove. This comes as social media sites have increasingly come under fire for their internal fact-checking and content moderation. Read more here.
AdAge reports that certain marketers are blocking keywords that would put advertising content next to Black Lives Matter coverage. These keywords include “BLM,” “George Floyd” and “black people.” Jason Kint, CEO of Digital Content Next, said “advertisers are running away from” content related to Black Lives Matter. The cost per impression (CPM) is reportedly 57 percent lower on Black Lives Matter content than other content. With news publishers already struggling to monetize content, ad companies are now facing criticism for shying away from important issues. Read more here.
On June 9, Senators Marco Rubio (R-FL), Kelly Loeffler (R-GA), Kevin Cramer (R-ND), and Josh Hawley (R-MO) requested that the FCC “clearly define the framework under which technology firms, including social media companies, receive protections under Section 230.” The letter, addressed to FCC Chairman Ajit Pai, was in reference to President Trump’s May 28 Executive Order on Preventing Online Censorship and the FCC’s role in the clarification process. FCC Commissioner response to the executive order has been mixed. Democratic Commissioner Jessica Rosenworcel said the Executive Order would turn the FCC into the president’s “speech police,” while Republican Commissioner Brendan Carr applauded the effort to hold tech companies accountable. Section 230 was not on the agenda for the FCC’s monthly open meeting on June 9. Read more here.
On June 2, Public Knowledge’s Policy Counsel Meredith Rose testified that Section 512 has allowed online censorship to thrive. The Senate Committee on the Judiciary’s Subcommittee on Intellectual Property hosted a hearing titled “Is the DMCA’s Notice-and-Takedown System Working in the 21st Century?” discussing the complex issues facing copyright policy today. The Committee also heard testimony from Don Henley, a veteran in the music industry, who spoke about how content creators are being robbed of their intellectual property by the current notice-and-takedown regime. This hearing followed the U.S. Copyright Office issuing a study of proposed changes to Section 512, after finding it was “tilted askew” of Congress’ original purpose. Watch the hearing here.
Twitter recently rejected an ad campaign by the Free State Foundation opposing net neutrality and calling for the internet not to be regulated as a public utility. The FCC has long since finished its net neutrality rulemaking, revoking most of the Obama-era regulations. Twitter has been supportive of net neutrality, and the Free State Foundation alleges that is a reason for its refusal to promote the tweet, calling the proposed ad “political.” In its ad policy, Twitter states it will not promote a tweet that advocates “for or against” political content that includes any reference to “legislation, regulation, directive, or judicial outcome.” This comes after Twitter came under fire from President Trump for fact-checking and placing warnings on some of his tweets. Read more here.
On June 5, Facebook responded to the Australian Competition and Consumer Commission’s (ACCC) Mandatory News Media Bargaining Code proposal, saying the “competitive rivalry in the relationship between digital platforms and news publishers” is “healthy” as it is. This comes in the wake of news publishers struggling to monetize content and having to lay off workers, problems only exacerbated by the coronavirus. In its response, Facebook claimed that removing news content from its website would have an insignificant impact on Facebook’s revenues in Australia because “most users do not come to Facebook with the intention of viewing news.” Facebook believes its already-existing efforts to support journalism and the benefits publishers receive from sharing their content on the platform are sufficient compensation. Read more here.
On June 2, the Center for Democracy and Technology filed a complaint in the District Court for the District of Columbia claiming that President Trump’s recent executive order violates the First Amendment. The “Executive Order on Preventing Online Censorship” serves as directive to both the FCC and FTC to begin the process of limiting Section 230’s legal safeguards afforded to digital platforms. The order was signed after Twitter began issuing warnings alongside many of President Trump’s tweets. The complaint claims the Order attacks Twitter — a private company — and will chill constitutionally protected speech. In February, the Ninth Circuit held that the First Amendment does not apply to big tech, allowing them an unprecedented amount of editorial power with little accountability. Read more here.
On May 21, the U.S. Copyright Office released a report outlining issues with the current regulation scheme as applied to the digital context. While the report does not call for a complete overhaul of Section 512 of the Digital Millennium Copyright Act, it does suggest Congress address flagged issues because the “original intended balance has been tilted askew.” The technological advancements since the statute’s enactment in 1998 has created gaps in the legislation, and online copyright infringement poses significant issues that need to be addressed. The U.S. Copyright Office calls on Congress to “fine-tune” Section 512 to address the new copyright issues posed by the internet. Read more here.
On May 19, the Australian Competition & Consumer Commission (ACCC) published a concepts paper seeking comment on four possible solutions to the bargaining imbalance between big tech and news publishers. These suggestions followed the ACCC’s Digital Platforms Inquiry in June 2019, which recommended a code of conduct to address this bargaining power imbalance. The ACCC suggests collective bargaining or a collective boycott of Google and Facebook as a possible solution to the imbalance — both practices that would otherwise be punishable as anti-competitive. Other possible solutions include bilateral negotiations and collective licensing or fee arrangements. The comments on these suggested solutions are due June 5. Read more here.
On May 18, the Supreme Court denied to review Force v. Facebook, a recent case implicating Section 230, from the Second Circuit. In Force v. Facebook, the Second Circuit allows Facebook immunity from a suit for failing to remove a post by Hamas, saying they will grant immunity “unless the defendant directly and materially contributed to what made the content itself unlawful.” This comes at a time when some are suggesting a public health exemption to Section 230, as communities are seeing the disastrous impacts of inaccurate information spread through digital platforms. The Supreme Court has yet to hear a case on the troubling applications of Section 230 to digital platforms. Read more here.
On May 5, International Trade Secretary Liz Truss and United States Trade Representative Robert Lighthizer issued a joint statement that they would begin virtual trade negotiations. As both countries deal with the ramifications of COVID-19, the economic health of the UK and the US are a top priority. The parties concur that a Free Trade Agreement “is a priority for both countries” and both hope to “secure an ambitious agreement that significantly boosts trade and investment.” However, United States negotiating representatives must ensure that Section 230 immunities are not further exported at the request of the platforms in an attempt to enshrine their immunity globally while Congress is revisiting the rule’s existence. The countries have provided adequate resources for the negotiations to be completed at an accelerated pace. Being that the U.S. and UK already trade over $200 billion a year, making each the other’s biggest investor, there is significant motivation to reach an amicable and timely deal. The Alliance will continue to ensure that news publishers interests are heard. Read more here.
As Facebook is investigated by the Department of Justice, the FTC, and over 40 state prosecutors, it now claims it isn’t just competing with other social media sites, it’s competing with newspapers, television, and videogames. As the investigations continue and whispers of breaking up the company increase, Facebook’s lobbyists advocate for an expanded market size, likely in an attempt to make Facebook appear less dominant. But as local newspapers struggle to keep the lights on in the midst of COVID-19 crisis, Facebook’s profit has increased despite sharp ad declines. In 2019, Facebook made over $67 billion from digital ads, and their first-quarter revenue was up 18 percent for this year, making many worries deepen about the pandemic expanding big tech’s already pervasive power. Read more here.
Nearly two years ago, the EU enacted the General Data Protection Regulation (GDPR), which was the world’s strictest online privacy regulation. Since its enactment, Google has been the only company fined under the law, making many question its effectiveness. CEO of advertising company WPP said that GDPR empowered big tech companies rather than limited them, because the law gave them “the ability to collect and process the data,” as reported by the Wall Street Journal. Many believe this lack of enforcement is due to European governments not providing adequate resources to data protection agencies. In a survey of European privacy regulators, 70 percent of those surveyed reported having inadequate resources. Because of Europe’s lack of enforcement under the GDPR, it could undermine other efforts around the world to hold big tech accountable for privacy breaches. Read more here.
Since September 2019, Texas Attorney General, Ken Paxton, has led a group of attorneys general across the country in an investigation into Google for potential antitrust violations. Specifically, the attorneys general are scrutinizing Google’s level of control and anticompetitive behavior in the online advertising and search traffic markets. On April 22, 2020, AG Paxton spoke at an event held by the American Bar Association’s Antitrust Law Section. He reiterated his belief that federal, state, and local regulations of Big Tech companies are necessary to protect consumers. He also said that the COVID-19 pandemic has not slowed down the attorneys’ general investigation into Google. Read more here.
News Media Alliance Joins Others to Recommend Strong Copyright Protections in the U.S.-UK Trade Agreement
On April 28, the News Media Alliance joined a group of creative-industry organizations to publish comments on the proposed trade agreement between the United States and the United Kingdom. The comments outline the importance of the copyright-intensive industries to the economies of both countries and lays out the priorities of these communities for the negotiations. The priorities include keeping any potential copyright safe harbor provisions “short and high-level” without detailed obligations, ensuring that these provisions are not affected by other third-party liability provisions that are under review in both countries, and extending the copyright term in the United States to meet that in the United States. The letter also calls out for strong copyright enforcement and national treatment provisions, in addition to reiterating the willingness of the signatories to work constructively with both governments during the negotiations. Read the full comments here.
On April 23, the U.S. District Court for the District of Columbia upheld the settlement reached last July for sanctions brought by the FTC against Facebook for privacy violations that have spanned nearly eight years. Judge Timothy Kelly upheld the largest penalty ever won by the FTC, but the settlement also requires Facebook to take additional measures to protect users’ personal information. The opinion lists 11 different remedial steps Facebook must take, including “clearly disclosing” any time it shares personal information with third parties and obtaining express consent, ceasing “a host of” misrepresentations about its collection and use of users’ personal information, and creating a committee, independent of Facebook’s board of directors to oversee the implementation of the new privacy efforts. Read more here.
On April 23, 2020, several Google and Facebook representatives participated in an every-other-week video conference hosted by the Privacy Community Group (PCG) of the World Wide Web Consortium (W3C). This marks Google’s first appearance at a PCG conference as a member of the group. The discussion focused mainly on a proposal called “Registry of Businesses and Domain Name Ownership,” which would create an authority with whom businesses could register as trusted owners of user data, include which legal requirements they follow (e.g., GDPR, CPAA, etc.), and identify third-parties with whom the business has contracted. Browsers could consult this list before sharing an individual user’s cross-site browsing activity. Read more here.
On April 20, 2020, the Australian government directed the Australian Competition and Consumer Commission (ACCC) to develop a mandatory code governing the commercial relationship between digital platforms and media outlets. This code will address the sharing of data, ranking and display of news content, monetization and sharing of revenue generated from news, and dispute resolution mechanisms. ACCC will release a draft mandatory code by the end of July 2020. This decision follows findings of disparate bargaining power between digital platforms and media outlets in ACCC’s Digital Platforms Inquiry final report, the Australian government had instructed ACCC in December 2019 to facilitate negotiations between the two industries for the development of a voluntary code. These negotiations were expected to last until November 2020. Due to the media sector’s financial strain exacerbated by COVID-19 and ACCC’s belief that a voluntary agreement is unlikely, the Australian government instead enjoined ACCC’s development of a mandatory code. Australia’s Treasurer, Josh Frydenberg, stated the government’s belief that a mandatory code “is critical for the future viability of [the Australian] media sector and it’s all about competition and creating a level playing field.”
Traffic to news sites has spiked in recent weeks due to the COVID pandemic; however, news publishers have not seen a financial benefit. Overzealous blacklisting – based on unjustified fears that news stories don’t meet brand safety guidelines – has led to a decrease in digital ad revenues just when publishers are investing resources in meeting their communities’ needs.
Support for ad placement with news publishers has come from the ad industry association — the 4A’s released a report pointing out that “trusted news content is brand safe” and encouraged its members to support news. The Interactive Advertising Bureau (IAB), which focuses on online advertising, specifically called on its members to not block news, citing the public health benefits of supporting journalism. The Local Media Consortium and the Brand Safety Institute partnered to create a whitelist of local news sites for advertisers to include in their digital buys. And the advertising technology companies MediaMath and TRUSTX partnered with each other and data provider Peer 39 to ensure their clients understand how continuing to place their ads near brand suitable news can help them reach the right audiences while supporting the important work of journalism. The Alliance will continue to push for a solution to prevent the news industry from seeing continuing declines in ad revenue.
On April 19, the Wall Street Journal reported that OpenSlate, a brand safety company, refused to sign a contract with Google after being an approved partner since 2017. The contract would allegedly limit OpenSlate’s ability to report to clients when their ads play in YouTube videos with sensitive subject matter like “hate speech, adult content, children’s content, profanity, violence and illegal substances.” The contract would require OpenSlate to get prior approval from Google to share these metrics with its clients. One of Google’s brand-safety partners, DoubleVerify reported that it still delivers “unrestricted” reports to its clients. This news follows a universal ad decline amid the COVID-19 crisis, and tech companies scramble to continue monetizing content. Read more here.
As America works to meet the needs brought on by COVID-19, tech companies have coordinated with the government to find effective responses to the crisis. But people’s newfound appreciation and trust in big tech will likely be short lived. Statistics about regional differences in social distancing can be useful for public health experts and interesting to the general public today, but information like this can make users increasingly concerned about their privacy and big tech’s use of their data tomorrow. Similarly, the online platforms’ role in choosing what people see and vetting information can help distribute reliable information during a crisis but threatens the sustainability of and access to high-quality journalism at other times. As big tech enjoys a rare bout of positive press, Attorney General William Barr was quick to confirm that he plans to make a decision about the antitrust inquiries into the tech industry by early summer. Read more here.
On April 9, the French competition regulator, Autorité de la Concurrence, issued an interim decision requiring Google to pay for news content under the recently implemented European Union Copyright Directive. Article 15 of the Directive requires EU Member States to create a so-called Publishers’ Right that allows news publishers to protect their content online by preventing uncompensated use by online platforms. The competition regulator’s decision, finding that Google has likely engaged in anticompetitive behavior, came after a group of French publishers filed a complaint with the authority due to Google’s refusal to pay for news content following France’s transposition of the Publishers’ Right into national law last year. The decision requires Google to engage in good faith negotiations and reach a remuneration deal with French publishers within three months, among other conditions. The decision is an interim measure while the authority continues its investigation into the merits of the case. Read the decision here (in French).
On March 20, the News Media Alliance joined over 60 business groups, including the Motion Picture Association and the Association of National Advertisers, in asking the Attorney General of the State of California, Xavier Becerra, to postpone the enforcement of the California Consumer Privacy Act (CCPA). The CCPA was adopted in 2018 and provides residents of California with strong privacy protections. While the law came into effect in January 2020, the Attorney General is required to promulgate implementing regulations prior to the planned enforcement start date of July 1. The letter calls for the Attorney General to delay this deadline by six months due to the ongoing COVID-19 pandemic that places considerable stress on the businesses that must comply with the new law. According to reports, the Attorney General is currently planning on sticking to the original schedule. Read more here.
On March 17, the Washington Post reported that the government is in discussions with the tech industry regarding the use of user location data to aid in slowing the spread of COVID-19. The news follows earlier reports of the administration reportedly asking the big tech companies to assist governmental efforts to battle the virus. Any potential partnerships between the government and big tech would be sensitive as the tech industry has been under increased scrutiny for its handling of user privacy and as Congress has not agreed on a federal privacy legislation. On March 18, five Democratic Senators, including Robert Menendez (D-NJ), Sherrod Brown (D-OH), Richard Blumenthal (D-CT), Kamala Harris (D-CA), and Cory Booker (D-NJ), sent letters to Vice President Mike Pence and Google CEO Sundar Pichai asking whether user privacy considerations had been taken adequately into account when developing the Google-affiliated pilot screening website launched on Sunday. Read the letter here.
On March 17, Representative David Cicilline (D-RI), Chair of the House Antitrust Subcommittee, held a roundtable discussion with stakeholders in Rhode Island on competition in the digital marketplace. The event, hosted virtually due to the COVID-19 pandemic, was aimed at soliciting the views of local businesses, innovators, and thought leaders about the issue. Representatives of The Boston Globe and The Providence Journal participated in the roundtable, highlighting how the dominant platforms affect the news industry. They also expressed support for the Journalism Competition and Preservation Act that would grant news publishers a temporary safe harbor to come together and negotiate collectively with the platforms. Rep. Cicilline has been leading a congressional antitrust investigation into market power online, including whether the dominant platforms have engaged in anti-competitive conduct, that is expected to wrap up soon. The subcommittee has held five hearings and sent multiple requests of information to the tech platforms as part of the investigation. Read more about the subcommittee’s investigation here.
On March 16, Dr. Johnny Ryan of Brave Software, a California-based developer of a privacy-focused web browser, filed a complaint with the Irish Data Protection Commission regarding Google’s use of consumer data for undisclosed purposes across its business. The complaint argues that Google fails to adequately ring-fence the personal data it collects for its various services, instead allowing other parts of the company to use the data without making this clear to users. Such use would violate Article 5(1)b of the European Union’s General Data Protection Regulation (GDPR), which establishes a “purpose limitation” principle. Specifically, GDPR allows user data to be collected for “specified, explicit and legitimate” purposes but forbids the use of such data “in a manner that is incompatible with those purposes.” The complaint follows Dr. Ryan’s attempts to find out how Google uses his personal data. Properly enforced, GDPR would allow users to limit how Google uses their personal data, in addition to increasing competition in the digital marketplace. Read more about the complaint here.
On March 13, the U.S. Copyright Office shared a summary of its pandemic plan with Members of Congress, noting that the Office aims to continue providing essential services during the ongoing COVID-19 pandemic. These services include administering the registration and recordation systems, handling mandatory deposits, and conducting regulatory activities. According to the summary, many Copyright Office staff members will work remotely, although some will remain on-site, and the registration examination of digital applications will continue as normal. Paper applications and physical deposits may experience delays. Additionally, the remote working arrangements should not have any effect on the Copyright Office modernization efforts.
Data Privacy Bill Fails in Washington; New York Legislators Consider a Comprehensive Bill Requiring Opt-In
On March 12, Washington State Senator Reuven Carlyle issued a statement indicating that the state House and Senate had failed to reach a compromise on a proposed consumer privacy bill, the Washington Privacy Act. The Act would have created broad consumer data protections similar to those established by the California Consumer Privacy Act (CCPA) and the EU’s General Data Protection Regulation (GDPR). The Washington House and Senate disagreed about whether the Act should include a private right of action. The bill’s failure marks the second time that the bill has failed to pass the legislature. Meanwhile, New York State is considering a data privacy bill, A8526/S5642, which would go beyond CCPA and GDPR by requiring affirmative opt-in consent, creating a private right of action, and establishing a fiduciary duty of care, loyalty, and confidentiality that would require businesses to put consumers’ privacy rights ahead of their own interests. Read more about the Washington Privacy Act’s failure here.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The U.K.’s Competition and Markets Authority (CMA) is conducting a study on whether Google and Facebook’s market power has stifled competition in the digital market. CMA’s interim report supports the finding that the duopoly dominates the digital advertising market, depriving news publishers from monetizing content through advertising. The report raised concerns that the platforms’ vertical integration lacks transparency and presents an inherent conflict of interest. The report also finds that such an anticompetitive marketplace could hinder innovation, lead to higher prices for consumers, and through the “ad tax” could result in less output of quality journalism. Among the regulatory recommendations being explored is an “unbundling” of Google’s products and services. CMA requests comments from stakeholders by February 12, 2020 and will release a final report with conclusions and recommendations by July 2, 2020. You can find the full interim report here.
The Australian government will implement several of the Australian Competition and Consumer Commission’s (ACCC) recommendations to increase competition and mitigate digital platforms’ market power, giving news media companies a chance to address the power imbalance. Notably, the Australian government will require platforms and publishers to negotiate and finalize voluntary codes of conduct by November 2020. Platforms and publishers will have one year to strike deals, otherwise the government may impose mandatory regulations. Australia’s efforts to improve business arrangements between platforms and publishers may provide guidance to the U.S. government as it considers solutions for news publishers, including the safe harbor bill. Read more here.
This week, Senators Rand Paul (R-KY) and Cory Booker (D-NJ) announced their co-sponsorship of the “Journalism Competition and Preservation Act” (JCPA), known as the Safe Harbor Bill. The JCPA was introduced in the Senate (S. 1700) in June, while a similar bill was introduced earlier this year in the House (H.R. 2054). Senator Paul, a key conservative voice, said in a statement to National Review, “Government threatens the viability of trusted news sources through old and outdated restrictions on the ability of those sources to survive in an evolving media environment. We need to get government out of the way.” Senator Booker told the Alliance, “Local journalism plays a vital role in keeping communities informed and holding public officials accountable, and this bill will help newspapers continue those important efforts.” Read more.
Following reports that House Speaker Nancy Pelosi (D-CA) had requested the removal of broad immunities for online platforms from the United States-Mexico-Canada Agreement (USMCA), the Speaker noted on December 10 that the protections would not be removed from the agreement as the request had been made too late. Article 19.17 of the USMCA codifies language similar to Section 230 of the Communications Decency Act for the first time in an international agreement, while Congress is currently considering multiple issues that may require amending Section 230 domestically. Section 230 provides online platforms with broad immunities for third-party content posted on their platforms. Both Democratic and Republican lawmakers have expressed concerns over the inclusion of the provision in the USMCA and other trade agreements. The Alliance had raised concerns with the Administration and Congress about the broad immunity since it is under review here in the United States, creating questions whether now is the time to begin exporting and cementing the immunity internationally. Read more here.
On December 6, the News Media Alliance submitted comments with the California Attorney General on the AG’s proposed rules to implement the California Consumer Privacy Act (CCPA) that will go into effect on January 1, 2020. The CCPA will limit the ability of news publishers to benefit from targeted digital advertising, and the Alliance comments focus on aspects of the proposed regulations that impose additional burdens on news publishers while providing no added benefit to consumers, including issues related to the “Notice at Collection” and opt-out requirements. In addition to the comments, the Alliance’s external counsel testified on behalf of the Alliance during a public hearing on the regulations. The proposed regulations were published in October, and the Attorney General is required to promulgate final rules by July 2020. In addition to the Attorney General’s regulations, both the IAB and DAA released their compliance frameworks. The IAB framework would bind all participants to an industry-wide contract, while the DAA framework resembles the existing AdChoices program. Google has announced that it will allow publishers and advertisers to restrict personalized ads and that it will also sign onto the IAB framework. Read the Alliance’s AG comments here.
On November 20, a group of French media companies filed an official complaint with the country’s competition regulator over Google’s refusal to pay for rights to display news content. The complaint comes months after France became the first country to adopt Article 15 of the EU’s new Copyright Directive, which allows news publishers to negotiate for compensation when their content is used by companies such as Google. Following the implementation, Google announced that it will limit the way content published by French publishers is displayed in search unless they waive their right to compensation. If publishers refuse, only a headline and link will appear in Google’s search results. In their complaint, the publishers claimed that Google’s refusal to pay is an abuse of their dominant market power. Google has denied that they’re abusing their power, telling Agence France Presse, “Google helps internet users find news content from many sources and the results are always based on relevance, not trade agreements.” Earlier in October, the French government indicated that it will also be looking into the issue. Read more.
Google News Shutdown Not Such a Bad Thing in Spain: Many Publishers Witnessed Increased Traffic to News Sites
On Nov. 14, the News Media Alliance published an analysis on the impact to Spanish news publishers of the closure of Google News in Spain in 2014. Opponents of the European Union’s recently-adopted Publishers’ Right have used Spain’s experience with a similar law as an argument against expanding protections for news publishers more widely. However, the Alliance’s review of publicly available data and discussions with European stakeholders challenges this view. The data reviewed by the Alliance indicate that those Spanish news publishers included in the analysis were minimally affected and that the reduction in traffic to publisher websites following the closing of Google News was, if anything, low and temporary. Since 2014, online traffic trends for select Spanish news sites seem to have remained largely unchanged, with the total number of unique monthly visitors actually increasing with many publishers. In addition, cutting out the middle-man benefits news publishers in the form of more valuable direct traffic. You can find the full analysis, containing more statistics and examples, here.
A number of Attorneys General are expanding their antitrust investigation of Google to include the company’s search practices and their Android operations, according to reports. The investigation, which includes 50 Attorneys General representing 48 states, the District of Columbia, and Puerto Rico, is being led by Texas’s Attorney General. The Attorneys General are investigating potential anti-competitive behavior from Google, including in its dominance of the Android mobile market. Sources familiar with the inquiry told CNBC that the attorneys general are expected to serve subpoenas to Google for information related to search and Android. Read more.
On November 6, California’s Attorney General announced that he had opened an investigation into Facebook’s privacy practices, but that the platform had not been cooperating with his office in the investigation. The AG filed a lawsuit against Facebook for documents claiming that, over the course of 18 months, the tech giant had failed to respond to dozens of requests for information. Prior to the lawsuit, the AG’s investigation had not been disclosed in public, but Attorney General Xavier Becerra said in a statement that he had “no choice” but to make the investigation public following Facebook’s continued lack of cooperation. With the announcement, California joins the list of states and territories looking into the antitrust practices of the duopoly, with 50 states looking into Google and nine investigating Facebook. Read more.
On November 1, five senators — John Thune (R-SD), Richard Blumenthal (D-CT), Jerry Moran (R-KS), Marsha Blackburn (R-TN), and Mark Warner (D-VA) — introduced the Filter Bubble Transparency Act. The bill would require that online companies that collect data from more than one million users and gross more than $50 million annually become more transparent, allowing users to see content that “has not been curated as a result of a secret algorithm.” It would also make it easier for users to better understand the manipulation that may be baked into the algorithms that feed them information in their search and news feeds. Senator Blackburn noted that when “individuals log onto a website, they are not expecting the platform to have chosen for them what information is most important,” and that the “legislation would give consumers the choice to decide whether they want to use the algorithm or view content in the order it was posted.” Read more.
On October 25, Facebook introduced Facebook News to some users in the United States. The News Tab will offer a new way for users to access news content on the platform, allowing users to control and personalize the news they see. In an effort to highlight original reporting, the Today’s Stories section of the News Tab is curated by a team of human editors. The News Tab will feature content from publishers that are in Facebook’s News Page Index, abide by the Publisher Guidelines, and have a sufficiently large audience. In a statement, the Alliance President & CEO David Chavern welcomed the creation of the News Tab and Facebook’s willingness to pay for quality journalism as a good start, while noting that the limited participation and calling for a more comprehensive solution. Read more about Facebook News here and the Alliance statement here.
On October 23, Facebook Chairman and CEO Mark Zuckerberg stated during a congressional hearing that the company would be launching its News Tab later in the week. The company spokesperson later confirmed that the new initiative to support high-quality journalism would be launched at a news conference in New York City on Friday, October 25. Facebook has reportedly been negotiating licenses with news publishers to license content for the News Tab, which will be curated in part by veteran journalists. Mr. Zuckerberg’s announcement came during the House Financial Services Committee hearing titled “An Examination of Facebook and Its Impact on the Financial Services and Housing Sectors.” Mr. Zuckerberg was the sole witness at the hearing and was answering a question from Representative Frank Lucas (R-OK) about Facebook’s media literacy initiatives and other efforts to promote trusted information on the platform. Read more about Friday’s planned announcement here and watch the hearing here.
The News Media Alliance commends the House of Representatives for passing H.R. 2426, the “Copyright Alternative in Small-Claims Enforcement Act of 2019” (CASE Act) on October 22. The House adopted the bill by an overwhelming vote of 410-6. The CASE Act would address the problem of prohibitive costs of federal copyright litigation by creating a small claims court within the U.S. Copyright Office that would help small publishers and other creators by providing an alternative, low-cost venue for protecting their intellectual property. In a statement, the Alliance President & CEO David Chavern noted the importance of making it easier for small publishers and creators to protect their works and called on the Senate to also pass the CASE Act. Read the Alliance statement here.
On Oct. 18, the House Subcommittee on Antitrust, Commercial and Administrative Law held its third hearing on dominant online platforms titled, “Online Platforms and Market Power, Part 3: The Role of Data and Privacy in Competition.” The witnesses included FTC Commissioner Rohit Chopra, Dr. Tommaso Valletti (Imperial College London), Dr. Jason Furman (Harvard University), and Dr. Roslyn Layton (American Enterprise Institute). Commissioner Chopra indicated support for more meaningful antitrust enforcement and penalties, while Professor Furman noted the need to address the under-enforcement of digital mergers. Most of the witnesses expressed support for some form of government action when it comes to competition rules and online privacy, noting the positive effect an enhanced competition regime may have on consumer privacy. Commissioner Chopra also expressed concerns over behavioral advertising, referring to the financial motivations of the platforms that undermine their immunity under Section 230 of the Communications Decency Act. Watch the hearing here.
On October 16, the House Subcommittee on Communications and Technology and the Subcommittee on Consumer Protection and Commerce held a hearing titled “Fostering a Healthier Internet to Protect Consumers.” The hearing focused on Section 230 of the Communications Decency Act and whether Congress should amend the Act in light of the numerous online harms that the platforms have failed to address. As it stands, Section 230 provides broad liability protections to online platforms for third-party content, immunizing the platforms from most civil liability. Congress is currently considering multiple issues that may require changes to the online liability provisions, including online hate speech, election interference, and the sale of illegal opioids and other illicit goods online. The witnesses at the hearing included both online industry representatives as well as critics calling for changes in the law. Multiple representatives questioned the online platforms’ ability to effectively self-regulate and noted that the Congress may be forced to take action if the platforms fail to act against online harms. Others, including Rep. Jan Schakowsky (D-IL) – who is on the House Democrats’ Trade Working Group – also questioned the inclusion of Section 230 immunities in international trade agreements, including the recently negotiated United States-Mexico-Canada Agreement (USMCA). Read the prepared witness statements and watch the hearing here.
Starbucks announced on October 1 that, in lieu of selling print newspapers in their stores, they will instead offer free digital access to several news sources for a limited time. The News Media Alliance worked with the company to help facilitate partnerships with the participating media outlets. Starting this month, Starbucks customers using in-store wireless internet service will have free access to the websites of the Chicago Tribune, The Wall Street Journal, the New York Daily News, The Baltimore Sun, USA Today, The Seattle Times and the Orlando Sentinel. All of the websites typically have metered paywalls that block access after users read a certain number of articles and prompt readers to subscribe. However, readers accessing the sites through Starbucks’ in-store Wi-Fi will not hit the paywall and will have unfettered access to the participating news publications. Starbucks may later do another rollout with more news publishers.
On October 4, Facebook and a group of advertisers who purchased video ads on Facebook’s platforms filed a proposed class action settlement resolving a case that has been in litigation since 2016. The case concerns Facebook’s alleged overstating of average viewing times for video ads on the platform, causing advertisers to overpay for their ads. According to the lawsuit, Facebook discarded video views that lasted less than three seconds, thereby overstating the average video watch times by as much as 900 percent. The proposed settlement requires Facebook to pay $40 million, and allows all U.S. advertisers who bought video ads between February 12, 2015, and September 23, 2016, to participate in the settlement. Facebook’s reported practices are concerning to news publishers as they are entering into relationships with Facebook to license content for its News Tab, expected to be launched soon. Read more here.
Google Refusing to Pay Publishers in France following the Implementation of the EU Copyright Directive
Google has opted out of paying publishers in France for news results in Google Search, an executive announced on September 25. France, which is the first country to implement Article 15 of the new European Union Copyright Directive nationally, had hoped that news publishers would benefit from the legislation allowing publishers to protect and license news content online, including snippets. Publishers in France were hoping to recoup some of the nearly €320 million they claim to lose to the duopoly each year. In response, Google has indicated that it will remove all snippets from search results, arguing that doing so would allow it to avoid licensing content under the Copyright Directive. Publishers who wish to allow previews without charge will be able to opt-out of the snippet removal and have their blurbs shown in the search results, forcing publishers to choose between protecting their content and not getting paid, a situation some have referred to as being “blackmailed.” Read more here.
The House Judiciary Committee on September 13 informed Alphabet CEO Larry Page that the company was under investigation regarding competition in digital markets. Page, whose company is the parent of Google and YouTube, among others, was asked to provide a host of documents and financial statements for each of its subsidiaries being investigated by the House. The Committee plans to look at whether Alphabet and its platform brethren are engaging in anti-competitive behavior online and whether existing antitrust laws and enforcement are sufficient to address any issues they find. You can read the House Judiciary’s letter to Page here.
News Media Alliance Requests Germany to Extend the EU Publishers’ Right to Non-EU Publishers during Implementation
On September 6, the News Media Alliance joined four other news media organizations to request the German Government to extend the protections created by Article 15 of the newly approved EU Copyright Directive to non-EU publishers. Article 15 of the Directive requires EU member states to create a Publishers’ Right that allows news publishers to protect their content online against unauthorized uses. The member states have until 2021 to implement the Directive. In the letter, the Alliance, European Publishers Council, News Media Association UK, News Media Europe, and WAN-IFRA noted that the member states have the right to extend the right to non-EU publishers, although the Directive does not require them to do so. Extending the right would protect both European and non-EU publishers. The letter was in response to the German Government’s public consultation on the implementation of the Directive. Read the letter here.
Alliance Hosts Congressional Fly-In to Advocate for Passage of the Journalism Competition & Preservation Act
On Tuesday, September 10, the Alliance is hosting a Congressional fly-in to advocate for the passage of the “Journalism Competition and Preservation Act.” Executives representing Alliance member companies will meet with Senators and Representatives on Capitol Hill throughout the day to discuss the bills currently before the House and Senate and to ask for support for a limited safe harbor that would allow news publishers to collectively negotiate with the tech platforms for better terms. You can learn more about both bills in the Alliance’s Safe Harbor Resource Center.
The Department of Justice (DOJ) has requested that Alphabet, the parent company of Google, turn over all information they have related to previous antitrust investigations conducted both in the U.S. and abroad, according to a filing by the Securities and Exchange Commission (SEC). The request comes following the launch of a DOJ antitrust probe into the dominant online platforms announced in July. In addition to the DOJ probe, recent reports indicate that the Federal Trade Commission’s (FTC) technology task force, created in February, has moved onto an investigation phase. While the FTC has not publicly named the companies under investigation, Facebook previously admitted that they were being looked at by the agency’s antitrust division. Read more.
On Thursday, September 12, the House Judiciary Antitrust Subcommittee will hold a hearing titled “Online Platforms and Market Power, Part 3: The Role of Data and Privacy in Competition” regarding the roles data and privacy play in helping or hindering competition in Silicon Valley. Those testifying at the hearing include: Democratic FTC commissioner Rohit Chopra; Rod Sims, chair of the Australian Competition and Consumer Commission; former Obama adviser Jason Furman, now a professor at the Harvard Kennedy School; and Roslyn Layton, a visiting scholar with the American Enterprise Institute who served on Donald Trump’s FCC transition team. Subcommittee Chairman David Cicilline (D-RI) will lead the hearing, which is the third in his ongoing series looking at the impact of the tech duopoly. Read more.
On September 6, the New York Attorney General announced that New York is leading a bipartisan, multistate investigation of Facebook’s dominant role in the digital marketplace. New York’s Facebook probe is joined by Colorado, Florida, Iowa, Nebraska, North Carolina, Ohio, Tennessee, and the District of Columbia. The investigation will focus on whether the company has jeopardized consumer data, reduced consumer choices, or increased advertising costs. In addition to the Facebook investigation, a separate group of 48 states as well as Puerto Rico and the District of Columbia is launching an antitrust investigation into Google. The probe is led by Texas. Read more about the investigations here and here.
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 firstname.lastname@example.org.
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.