US lawmakers propose Australia-style bill for media, tech negotiations

A group of US lawmakers is proposing new legislation that would allow media organizations to set terms with social media platforms for sharing their content, reminiscent of a controversial measure recently adopted in Australia.

The Journalism Competition and Preservation Act of 2021 basically creates a temporary 48-month carve-out to existing antitrust and competition law that would allow small news outlets to join forces to negotiate as a collective bloc with “online content distributors” such as Facebook and Google for favorable terms.

“A strong, diverse, free press is critical for any successful democracy. Access to trustworthy local journalism helps inform the public, hold powerful people accountable, and root out corruption,” said Rep. David Cicilline (D-R.I.), when introducing the proposal. “This bill will give hardworking local reporters and publishers the helping hand they need right now, so they can continue to do their important work.”

This is the third time Cicilline has introduced a similar bill, but he now has more company than in the previous two Congressional sessions. Reps. Ken Buck (R-N.Y.) and Mark DeSaulnier (D-Calif.) and Sens. Amy Klobuchar (D-Minn.) and John Kennedy (R-La.) also plan to co-sponsor the measure—giving it both bipartisan and bicameral support.

Text for the 2021 edition of the bill was not yet available at publication time, but previous editions define “online content distributors” covered by the law as aggregators that “display, distribute, or direct users to news articles, works of journalism, or other content on the Internet” that is generated by news companies and that have “not fewer than” 1 billion users. Very few businesses in this world have more than a billion users, so the bill is effectively tailored to apply to Facebook and Google without actually naming either company.

Seems familiar…

The House Antitrust Subcommittee, of which Cicilline is chair, held an often-contentious hearing Friday on the bill and the broader topic of how to ensure that media—especially smaller, local media—can stay afloat and in the black when the vast majority of the Internet is controlled by Google or Facebook.

Microsoft President Brad Smith testified at the hearing and said he supported legislative action in the US, just as Microsoft did in Australia.

“The problems that beset journalism today are caused in part by a fundamental lack of competition in the search and ad tech markets that are controlled by Google,” Smith said. “As a result, there is a persistent and structural imbalance between a technology gatekeeper and the free press… this makes it very unlikely that the economic transformation needed to restore journalism to health can succeed at scale without new legislation and government support.”

Smith then explicitly drew the connection to Australia’s new law, arguing, “The idea there was straightforward: the Australians put in place legislation to help drive market-based solutions.” The US, too, could seek that kind of solution, he suggested.

The path to legislation in Australia, however, was anything but smooth. After regulators in that nation first proposed the law, Google and Facebook went all-out in their campaign against it, not only lobbying lawmakers but also creating pop-up warnings that told Australian users, “Your [Google Search / YouTube] is at risk” when visiting Google’s web properties.

By January of this year, Google was threatening to quit Australia altogether if the bill became law. A month later, the company unexpectedly cut major deals with several Australian media groups to sponsor content outside of search results.

Facebook went a step farther and actually did ban all news links within Australia or from Australian media on its services in February. Facebook backed down a week later when lawmakers agreed to amend the bill, which became law a few days later.

Critics have argued that the deals in Australia now mainly benefit major media empires, such as those owned by mogul Rupert Murdoch, and do not protect or promote the interests of smaller or independent outlets. During the Friday hearing in the House, some Representatives and witnesses worried the same would happen in the US under the proposed legislation.

The proposed bill “provides a temporary fix for a 48-month period,” Cicilline countered. “And in fact, anything these larger media companies would negotiate would be available to the smallest newspaper in any city or town in America.”

The bill currently under consideration in Congress also does not contain the arbitration provisions present in Australia’s law, which were the largest point of contention during negotiations in that country.