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DIGITAL ADVOCACY UPDATES
Congress continued its hearings into consumer data privacy issues and the need for federal privacy legislation. On May 1, the Senate Commerce Committee held a hearing titled “Consumer Perspectives: Policy Principles for a Federal Data Privacy Framework.” The witnesses, including Helen Dixon (Irish Data Protection Commissioner), Neema Singh Guliani (ACLU), Jules Polonetsky (Future of Privacy Forum), and Jim Steyer (Common Sense Media), called for strong privacy protections that provide real and meaningful control to users. Commissioner Dixon indicated that Ireland has opened 12 significant investigations into U.S. tech companies following the enactment of the EU’s General Data Protection Regulation last year. Meanwhile, on May 7, the Senate Subcommittee on Financial Services and General Government held a hearing into the FTC’s budget request, during which Senators questioned the agency about potential federal privacy legislation as well as the FTC’s newly created high-tech task force. On the same day, Senate Banking Committee held a hearing titled “Privacy Rights and Data Collection in a Digital Economy,” during which Senator Mark Warner (D-VA) called for legislation to create real incentives for tech companies to change. On the House side, the Energy and Commerce Committee held an FTC oversight hearing on May 8, focusing on strengthening privacy and data security protections. FTC Chairman Joseph Simons noted that the agency would like to see federal legislation on consumer privacy, and that such legislation should provide the FTC with targeted rulemaking authority.
On May 7, the Alliance attended a meeting organized by Vishal Amin, the U.S. Intellectual Property Enforcement Coordinator, on the impact of recent European Union intellectual property developments on U.S. businesses. The meeting, attended by multiple stakeholder representatives from both the copyright community and civil society organizations, focused on the recently adopted EU Copyright Directive, in addition to the impact of GDPR on the ability of U.S. businesses to enforce their copyrights effectively. The Alliance expressed strong support for the Publishers’ Right created by the Directive. The meeting was organized to establish a dialogue between the government and the various stakeholders in order to better inform the administration about the impact of the developments and to examine next steps. The Director of the U.S. Patent and Trademark Office called on the stakeholders to find common ground on what clarifications to the Copyright Directive would be helpful.
On April 30, the French National Assembly’s Cultural Affairs and Education Committee unanimously approved the French version of the Publishers’ Right, implementing the recently passed EU Copyright Directive in national law. The French law requires an online platform to acquire an authorization from the news publisher prior to using its content online. The law also sets out factors to consider when determining the appropriate compensation amount. The bill, with further amendments, was approved by the full National Assembly on May 9. It has now been placed on the Senate’s agenda for a second reading. The EU Copyright Directive was formally adopted by the EU member states on April 15. The member states have two years to implement the Directive at national level. Read the French law here (in French).
On April 23, the California State Assembly’s Committee on Privacy and Consumer Protection voted favorably on multiple amendments to the California Consumer Protection Act (CCPA). The approved amendments include AB 874 (amending the definition of “personal information”), AB 846 (amending the discrimination provisions of the CCPA), AB 1355 (correcting drafting errors), AB 25 (amending the definition of “consumers”), AB 873 (amending the definitions of “personal information” and “deidentified”). These amendments would reduce legal uncertainty for publishers operating in California by clarifying and amending ambiguous and harmful provisions of the law. An amendment that would have largely rewritten the CCPA (AB 1760), including by requiring opt-in consent, was withdrawn at the request of the sponsor. The approved amendments were referred to the Assembly’s Committee on Appropriations before they go in front of the whole Assembly. Meanwhile, in the Senate, SB 561 (expanding the CCPA’s private right of action) was placed on the Appropriation Committee’s suspense file on April 29, making its passage less likely, while SB 753 (amending the definition of “sale”) was withdrawn from the Senate Judiciary Committee’s agenda on April 23. It is not clear if SB 753 will be rescheduled for hearing at a later date.
On April 15, the member states of the European Union officially adopted the long-awaited Copyright Directive, creating a Publishers’ Right in the EU. The Directive allows publishers to protect their content online against unauthorized uses, including by news aggregators. The Alliance played an active role in advocating for the Directive. Following the European Parliament’s vote on the Directive in March, and the Council’s approval last week, the Directive was reportedly signed on April 17. The member states will have two years to implement the Directive at the national level following its publication in the Official Journal. Read more about the Directive here.
The Alliance will meet with privacy advocates, including Alastair Mactaggart and Ashkan Soltani, to discuss issues related to the California Consumer Privacy Act. The meeting will focus on the CCPA’s potential effects on news publishers. As it currently stands, the CCPA would have significant impact on news publishers’ ability to benefit from digital advertising. The Alliance previously filed comments with the California Attorney General advocating for clarifications in the law. The Attorney General is required to publicize rules for implementing the CCPA by July 1, 2020. In addition to the AG’s rulemaking process, the California legislature is currently considering eight bills that would amend the CCPA. The Alliance is supporting a proposal that would amend the definition of “sale” to allow news publishers to financially support journalism.
The Department of Justice announced that it will hold a workshop from May 23 on advertising and antitrust enforcement and policy. The workshop will focus on television and online advertising, including the role of online and mobile ad networks. Assistant Attorney General Makan Delrahim will open the workshop. Panelists will include representatives from BIA Advisory Services, Breitbart, Facebook and Sinclair, among others. The panels will cover four distinct policy areas: television advertising, internet and mobile advertising, the competitive dynamics in media advertising, and trends and predictions. The event is open to the public with advance registration encouraged. Following the workshop, the DOJ will be accepting written comments on the issues covered until June 15. Read more about the workshop here.
On April 8, the U.S. Copyright Office organized the fifth roundtable in their ongoing Section 512 study, which evaluates the impact and effectiveness of the safe harbor provisions included in Section 512 of the Copyright Act. While the Section 512 safe harbors concern user-generated content, one of the roundtable panels focused more generally on international developments in online service provider liability. Alliance Senior VP, Strategic Initiatives, Danielle Coffey participated in the panel on international developments, drawing attention to the recently passed EU Copyright Directive, its effect on online platforms’ liability for infringing content and the need for effective enforcement mechanisms. Other speakers included representatives from Google, Facebook and other industry organizations. Read more about the Section 512 study here.
The Federal Trade Commission continued its hearings on April 9 and 10 on Competition and Consumer Protection in the 21st Century, with a hearing focused on the agency’s approach to consumer privacy. Participants included Alastair Mactaggart (Chairman, Californians for Consumer Privacy), Jason Kint (CEO, Digital Content Next) and representatives from other companies, public interest organizations and universities. They discussed the benefits of data collection and use for consumers, data minimization practices, and the existing and suggested legal frameworks for regulating consumer privacy. The participants also drew attention to the UK’s Online Harms White Paper. Watch the whole hearing here.
On April 8, the United Kingdom’s Department for Digital, Culture, Media and Sport and the Home Office released their long-awaited “Online Harms White Paper” that sets outs to tackle harmful content distributed by online platforms through the establishment of an independent watchdog and drafting of a code of practice. It also recommends giving the watchdog the right to fine non-compliant companies, potentially including company executives. Online platforms would be held accountable for a set of online harms, ranging from illegal content and activity to conduct that is harmful, but not illegal. At the same time, the U.S. Congress is continuing its hearings on hate speech and online censorship. On April 9, the House Judiciary Committee held a hearing titled “Hate Crimes and the Rise of White Nationalism,” where representatives from Google and Facebook stated that determining hate speech online can often be difficult. Meanwhile, the Senate Subcommittee on the Constitution held a hearing on April 10 on “Stifling Free Speech: Technological Censorship and the Public Discourse,” with representatives from Twitter and Facebook, among other witnesses. Elsewhere, Canada is reportedly considering regulating online platforms, Australia adopted a law aimed at violent content on social media, and New Zealand indicated it might follow Australia’s example.
On April 1, Facebook’s Mark Zuckerberg stated in a discussion with Axel Springer’s Mathias Döpfner that Facebook may start paying news publishers for the use of news content on the platform. According to Zuckerberg, Facebook is considering creating a separate news tab that would host high-quality news content based on direct relationships with the news publishers. Facebook is reportedly not planning on charging users to read the news, but instead opting to pay publishers from its own pocket. The announcement came a few days after the European Parliament adopted the Copyright Directive that will create a Publishers’ Right in the EU, allowing news publishers to protect their content online and negotiate licensing agreements with online platforms. Read more about Zuckerberg’s announcement here.
On April 3, House Antitrust Subcommittee Chairman David Cicilline (D-RI) and House Judiciary Ranking Member Doug Collins (R-GA) reintroduced H.R. 2054, the “Journalism Competition and Preservation Act,” first introduced in the last Congress. The bill would grant news publishers an antitrust safe harbor allowing them to come together to collectively negotiate with the tech platforms for more equitable terms. The safe harbor would last for four years, and allow news publishers to withhold content during the negotiations. The bill is supported by the American Society of News Editors (ASNE), National Newspaper Association (NNA), Association of Alternative Newsmedia (AAN), and 48 state press associations representing 49 states and the District of Columbia. The Alliance is continuing efforts to gain additional bipartisan support, as well as a companion bill in the Senate. Read all materials on the bill here.
On March 25, the Federal Trade Commission (FTC) continued its hearings on “Competition and Consumer Protection in the 21st Century.” The two-day hearing was the 11th in the series and focused on the FTC’s role in a changing world. In his opening remarks, FTC Chairman Joseph J. Simons outlined the agency’s collaboration with its international counterparts and announced a new cooperation agreement with the United Kingdom on consumer protection matters. Panel discussions focused on topics ranging from consumer protection and privacy enforcement to artificial intelligence and the implications of different legal traditions for international cooperation. Matthew Boswell of the Competition Bureau of Canada, noted the Bureau’s 2013 inquiry into Google’s online search and advertising practices, and the role international cooperation played in that investigation. Watch the full FTC hearing here.
On March 26, the European Parliament voted to adopt the Copyright Directive by a vote of 348–274. The final Directive creates a Publishers’ Right that gives publishers the right to protect their news content from unauthorized commercial use. This is a major victory for news publishers in Europe, serving as a potential template for countries outside the European Union. The Council must now formally adopt the Directive, expected to occur in April. Once finalized, the EU member states will have two years to implement the Directive at the national level. We expect the right to apply to EU publishers, with additional steps necessary for U.S. publishers to benefit. Read the Alliance’s press release on the European Parliament’s vote here.
On March 25, Apple announced its news subscription service, Apple News+, providing users access to more than 300 publications for a set monthly price. The service includes various magazines, in addition to news outlets such as The Wall Street Journal, Los Angeles Times, and Toronto Star, optimized for reading on Apple devices. Apple launched the new service in the United States and Canada as a paid addition to the existing Apple News service, which will continue to be free for all users. According to reports, at least some news organizations are providing only a portion of their content through the service. Apple has calculated that subscribing to all of the publications available through Apple News+ would cost more than $8,000 per year, while the subscription cost for its service is $9.99 per month. Some publishers have expressed concerns over Apple’s reported requirement that it receive 50 percent of subscription revenues. Read more about Apple’s announcement here.
Over the last two weeks, Congress has continued its investigations into antitrust and privacy issues with multiple hearings by both the Senate and the House. On March 5, the Senate Subcommittee on Antitrust, Competition Policy, and Consumer Rights held a hearing titled, “Does America Have a Monopoly Problem? Examining Concentration and Competition in the US Economy.” During the hearing, multiple senators focused on the dominance of a few tech companies and their effect on the American economy and society. Meanwhile, on March 12, the Senate Judiciary Committee held a hearing on “GDPR & CCPA: Opt-ins, Consumer Control, and the Impact on Competition and Innovation.” In addition to Alastair Mactaggart, the Chairman of Californians for Consumer Privacy, witnesses in the first panel included representatives from Google, Intel, DuckDuckGo and Mapbox. Much of the discussion focused on Google’s data collection practices and the differences between opt-out and opt-in regimes. At the same time, Representative Greg Walden (R-OR) discussed the broad immunities afforded to online platforms by Section 230 of the Communications Decency Act during his opening remarks at a House Energy and Commerce Committee hearing on March 12, “Legislating to Safeguard the Free and Open Internet.”
On March 8, Senator Elizabeth Warren (D-MA) proposed breaking up the dominant tech companies — Amazon, Google, and Facebook, adding Apple to the list the following day. Under her plan, companies that offer an online marketplace and have an annual global revenue in excess of $25 billion would be classified as “platform utilities.” These companies would then be prohibited from owning both the platform and any marketplace participants. This would require separating, for example, Google’s ad exchange from its other businesses that interact with the exchange. The online platforms would also be prohibited from selling or sharing user data with third parties. Sen. Warren’s plan would create a private cause of action, in addition to empowering federal and state regulators. Smaller companies would also be required to engage in fair, reasonable and nondiscriminatory dealings, but they would not be prohibited from owning market participants. Read more about Senator Warren’s proposal here.
On March 8, the Alliance filed comments with the Office of the Attorney General of the State of California in response to its ongoing rulemaking process to implement the California Consumer Privacy Act (CCPA). The CCPA, which establishes new rights for consumers regarding the collection and sharing of their data, was adopted on June 28, 2018, and will take effect on January 1, 2020. In its comments, the Alliance commended the intent of the statute, while also outlining the significant negative consequences the CCPA will have on the freedom of the press and consumers in the absence of critical clarifications that the rulemaking and related industry guidance can provide. In particular, the comments note that the CCPA should prevent secondary uses of data when trusted first parties use that data for commercial activities that support quality journalism. Read the Alliance’s CCPA comments here.
On March 11, more than 250 organizations representing the news media industry, authors, composers, writers, publishers and other creative industries signed a letter urging the European Parliament to pass the Directive on Copyright in the Digital Single Market. Article 11 of the Directive would create a Publishers’ Right in the European Union, giving news publishers an independent right to protect their content online against unauthorized uses. The European Council and the Parliament reached a compromise deal on the Directive on February 13, and the Council adopted it a week later. The Parliament still has to vote on the Directive. The vote is expected to take place during the Parliament’s March 25–28 plenary session. The Alliance signed the joint letter and will continue to work with our European partners to ensure the adoption of the Copyright Directive. Read the joint letter here.
On February 14, the Alliance Digital Advisory Group — the Alliance’s hub for discussing issues related to the online ecosystem — held a video conference with Twitter on monetization issues. First, Twitter updated Alliance members on how sponsored tweets could potentially benefit publishers. A business can sponsor news content promoted on Twitter, with the revenue from the sponsored content split evenly between Twitter and the business, effectively giving the organization 1.5 times the value of the sponsorship. Twitter also discussed plans to develop a program for local news organizations to effectively monetize their content on the platform, called the Local News Monetization Program. The beta test participants for the Local News Monetization Program will likely be selected by the second quarter of 2019, and Twitter will share the learning outcomes with the Alliance.
On February 26, the Federal Trade Commission (FTC) announced that it will establish a task force to examine and lead enforcement efforts against anti-competitive activities by big tech companies. The move follows intense scrutiny of the FTC’s enforcement efforts and oversight by Congress. The task force is a part of the FTC’s Bureau of Competition and is composed of approximately 17 lawyers. It is modeled after the agency’s Merger Litigation Task Force, launched in 2002, and will be led jointly by Patricia Galvan and Krisha Cerilli. The FTC’s move comes after reports that Senator Lindsey Graham (R-SC) plans to create a task force of the Senate Judiciary and Commerce committees to examine online privacy, content and bias, among other issues. Similarly, the newly-appointed Attorney General William Barr indicated during his confirmation process that he would be interested in further examining the role of big tech companies. Read more about the FTC’s task force here.
On February 26 and 27, the House and the Senate held separate hearings on the need for federal approaches to consumer data privacy. The House Consumer Protection and Commerce Subcommittee’s hearing, “Protecting Consumer Privacy in the Era of Big Data,” featured panelists from both consumer and business advocacy organizations, including Color of Change, Interactive Advertising Bureau (IAB), American Enterprise Institute (AEI), Center for Democracy & Technology and Business Roundtable. The panelists, as well as many of the representatives, emphasized the need for federal privacy legislation. IAB’s Dave Grimaldi and AEI’s Dr. Roslyn Layton noted the need to ensure that such legislation does not stifle innovation or harm small businesses, drawing particular attention to the fact that more than one thousand U.S. news sites are not available in Europe because of the General Data Protection Regulation (GDPR). Meanwhile, in the Senate, the Commerce Committee’s hearing on “Policy Principles for a Federal Data Privacy Framework in the United States” featured speakers mainly from industry groups. All witnesses supported the creation of a federal privacy framework, with most panelists agreeing that the law should preempt state laws. Some panelists and Senators, including Ranking Member Maria Cantwell (D-WA), noted that the federal privacy protections should be comprehensive and meaningful. Watch the full recordings of the House hearing here and the Senate hearing here.
Following the deal reached between the European Parliament and the Council on the language of the proposed Copyright Directive — including Article 11, which would create a Publishers’ Right in the European Union — the Council approved the final version on February 20. Following the Council’s vote, the Parliament’s Legal Affairs Committee approved the deal on February 26. The compromise version of Article 11 sticks closer to the Council’s proposal, with “individual words and short extracts” falling outside the scope of protection. However, the negotiators inserted a sentence ensuring that the exclusion of short extracts is not interpreted to weaken the effectiveness of the Publishers’ Right. Following the votes in the Council and the Legal Affairs Committee, the Directive must now be approved by the full Parliament. The Parliament is expected to vote on the measure during its session from March 25–28. The Alliance will work with our European partners to help ensure the passage of the Directive. Read the Legal Affairs Committee’s press release on the Directive here
The Alliance LawView state legislation tracking tool now includes data privacy bills. The bills captured by the privacy tracker include the data privacy bills currently being considered in New York, Washington state, North Dakota and Massachusetts, among other states. Among the bills being considered is New York’s “Right to Know Act of 2019” (NY S 224 and NY A 3739), which would establish a right of access and regulate the information businesses must provide to residents of New York state. New York is also considering the “Stop Hacks and Improve Electronic Data Security Act (SHIELD Act)” and the “Personal Information Protection Act.” These bills would amend existing breach notification requirements and establish a personal bill of rights, respectively. Similarly, the “Washington Privacy Act” (WA SB 5376 and WA HB 1854) calls for transparency, individual control, respect for context, focused collection and responsible use, security, access and accuracy. In North Dakota, meanwhile, HB 1485 establishes consumer data protections and would define “personal information” to include browsing history and inferences drawn from other personal information. Massachusetts’s SD 341 would add a new “Consumer Data Privacy” section in the state’s code and establish access and notice requirements, in addition to a right to delete. These and other data privacy bills follow the passage of the California Consumer Privacy Act (CCPA) last year. The California Attorney General is currently conducting public forums in relation to the CCPA rulemaking process, with the next hearing scheduled for March 5. The AG’s office is also accepting written comments until March 8. Find out more about the rulemaking process here. To view the data privacy bills, visit the LawView State Legislation Tracker here and click on an individual state in the map or, under Issue Area, click on Privacy.
On February 7, the German competition authorities issued a decision prohibiting Facebook from linking user data it collects on its services and third-party sites with a Facebook account without explicit user consent. The competition regulator noted that the company’s existing procedures for collecting consent for such activities are not sufficient. The regulator also noted that Facebook’s unregulated collection and combination of user data has contributed to its dominant market position. The decision could affect Facebook’s recent decision to further integrate its Instagram, WhatsApp and Facebook Messenger services, in addition to its use of Like and Share buttons and the Facebook Login feature offered to external websites. Facebook has four months to comply with the order or risk fines of up to 10 percent of its annual revenues. The company also has one month to appeal the decision. Read the full decision here.
On February 13, the European Parliament and the Council reached a long-awaited deal on the proposed Copyright Directive, including Article 11, which would create a Publishers’ Right in the European Union. The compromise version of Article 11 sticks closer to the Council’s proposal, with “individual words and short extracts” falling outside the scope of protection. However, the negotiators inserted a sentence ensuring that the exclusion of short extracts is not interpreted to weaken the effectiveness of the Publishers’ Right. The right may also be available to non-European publishers. This is an excellent result for news publishers who worked diligently over the last few years to secure the inclusion of a strong and enforceable Publishers’ Right in the Directive. The negotiators, who have been meeting since October, reached the compromise just before the February 14 deadline. The text will now be translated and then both the Council and the full European Parliament will vote on the deal by April. The Alliance will continue working with our European partners to encourage the member states and the members of the European Parliament to adopt the Directive as soon as possible. Read the text of Article 11 here, and the Alliance’s statement on the final deal here.
On January 23, the Alliance held a video conference call with Facebook concerning the company’s investments in journalism, the “Today In” feature and the News Page Index. During the call, Facebook provided members with an update on the development of the “Today In” feature that allows users to see relevant news related to their local communities. Members raised the important issue of increasing subscriptions and advertising revenue through this new product. The call participants were also briefed on the News Page Index that Facebook will be using in the future to exempt news publishers from the political ads archive. Facebook encouraged news publishers to register for the Index in the next few months. The Alliance’s hub for discussing developments in the digital marketplace, the Alliance Digital Advisory Group, organized the call. Anyone interested in joining or learning more about the Digital Advisory Group can email email@example.com.
On Friday, January 18, the Council of the European Union canceled what was supposed to be the final negotiation meeting with the European Parliament and the European Commission to find a compromise agreement on the EU’s Copyright Directive. Article 11 of the Directive would create a Publishers’ Right that would, for the first time, give news publishers in the European Union the right to protect their original online content against unauthorized uses. The cancellation of the meeting came after the Member States were unable to agree on a new negotiation mandate for the Council, on an issue related to Article 13, which concerns online services such as YouTube. The Alliance continues to support Parliament’s version of the Publishers’ Right, which would provide a fair and clear standard that protects snippets — the Council must find an internal compromise to get closer to that standard. The trilogue negotiations are expected to be rescheduled as soon as the Council reaches a compromise on its position. In the meantime, the Alliance will continue to work for the inclusion and swift adoption of a strong version of Article 11.
On January 29, the House Judiciary Committee held its first hearing under the new Democratic leadership on H.R. 1, the “For the People Act of 2019.” The Act, addressing issues such as automatic voter registration, big money in politics, and ethics rules for public servants, also includes language replicating the “Honest Ads Act.” This subsection would require online platforms to maintain and make available for public inspection records of qualified political advertisements published on the platform. The Act does not include an exemption for news publishers, thereby imposing the same political record requirements on news publishers of a certain size who publish political ads. While the issue did not come up during the hearing, the Alliance will work diligently to either include an unequivocal exemption for news publishers or to revise the language so that the Act’s requirements do not impose undue burdens on news publishers. Read more about the bill here.
On January 29, Congressman David Cicilline (D-RI) recognized again the importance of ensuring critical access to trusted, high-quality news by committing to reintroducing the “Journalism Competition and Preservation Act.” The Act, originally introduced during the last session, would create a safe harbor for news publishers to negotiate together with the dominant tech platforms to find fair terms for the use of news content. Such terms would help flow earned subscription and advertising dollars back to the publishers, while preserving Americans’ right to access high-quality journalism. Considering the dominant role of the big tech platforms in the digital ecosystem, from digital ad markets to regulation of news, publishers need a stronger position to negotiate fair and equitable rules of the game. The Alliance published a press release in response to Congressman Cicilline’s announcement. Read the release here.
European Union negotiators are expected to meet for the last time on Monday, January 21, to reach a compromise agreement on the proposed EU Copyright Directive. The Directive includes Article 11, which would create a Publishers’ Right in the European Union, giving European news publishers the right to independently protect their content online. In advance of the January 21 negotiations, the Alliance sent out letters to the European Commission and the Council Presidency, as well as the European Parliament’s lead negotiator, to counter some of the claims and requests made by the tech community and to express support for the European Parliament’s version of Article 11. The Parliament’s version would create a clear and fair standard for the publishers and tech companies to follow, while the Council’s original position would undermine the Right considerably. The Alliance also recently published a rebuttal of Google’s misleading arguments Google is promoting as part of its “Together for Copyright” campaign. If the negotiators reach a compromise agreement, the Council and the Parliament are expected to vote on the measure by April, ahead of the European elections in May.
On January 15, the Alliance held a meeting between member news publishers and Google to find new ways of working together. Issues discussed at the meeting in Palo Alto, California, included the Google News Initiative, subscriptions, content distribution, YouTube and the future of audio news. The Alliance sought to find ways to flag and uplift original news content, both in search and AMP, and to achieve progress on Subscribe with Google and Propensity to Pay. Additionally, the meeting explored an economic model for news content on Google Assistant, YouTube monetization options for local content, and improved search rankings for news content. The Alliance’s Digital Advisory Group (the Alliance’s hub for discussing developments in the digital marketplace and finding collective solutions to common problems) helped to identify and prioritize these issues. This group will work on the common ground established at the meeting and update the working plan to find technical and monetary solutions for the news industry.