By:
March 11, 2021

Legislators in both chambers of Congress reintroduced bipartisan bills Wednesday to allow news outlets to collectively negotiate with tech giants like Google and Facebook.

The Journalism Competition and Preservation Act, designed to help news organizations gain back much-needed digital advertising revenue, is co-sponsored by Reps. David Cicilline (D-R.I.) and Ken Buck (R-Colo.) and Sens. Amy Klobuchar (D-Minn.) and John Kennedy (R-La.). Past iterations of the bill have garnered support from 48 state press associations and the News Media Alliance, which represents more than 2,000 publications.

“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,” Cicilline said in a press release.

Many in the industry point to Google and Facebook as being responsible for declining revenue. Publishers that once used to rely on print advertising revenue have had to focus instead on their digital presence as more and more people consume their news online. But Google and Facebook have monopolized the advertising market, diverting away revenue that would have otherwise gone to publishers.

According to a NewsGuild press release, the Senate Committee on Commerce, Science, and Transportation found that an advertiser looking to reach 40,000 Los Angeles Times readers would pay $400,000 in print ads, $5,600 in digital ads or $16 in Google ads.

If passed, the Journalism Competition and Preservation Act would establish a four-year “safe harbor” during which news organizations are granted immunity from federal and state antitrust laws. They would then be able to negotiate collectively with the tech giants.

News Media Alliance president David Chavern said he is “very optimistic” about the bill’s chances. Last year’s bill received bipartisan support from members including Senate Minority Leader Mitch McConnell (R-Ky.) and Sens. Cory Booker (D-N.J.) and Rand Paul (R-Ky.).

The bill introduced Wednesday is essentially identical to the versions submitted in 2019 and 2018. However, Chavern said some Congress members have expressed interest in adding more to the bill. Those changes could include dispute resolution and language explicitly outlining the ways small publishers would benefit.

“One of the bad and incorrect frames that gets put around this debate is that somehow these negotiations primarily benefit large publishers,” Chavern said.

He pointed out that before Australia passed its News Media Bargaining Code requiring digital platforms to pay news publishers to link their content last month, some larger publishers had deals with Google: “Really, the only hope for small publishers is to have some negotiating code backed by law.”

Australia’s bargaining code is more robust than the current safe harbor bills and in some ways, provides a model for what future legislation could look like. But the First Amendment prevents the United States from just transferring over Australia’s code.

“Our courts give a lot of deference to those who are trying to disseminate information. Unfortunately, in our case, it’s off the backs of our work and tremendous financial investment,” said Danielle Coffey, senior vice president and general counsel of the News Media Alliance. “We’ve focused instead on the competition imbalance because even if you have the best rights in the world, if you have a monopoly and you can’t assert that right, then what do you do?”

The News Media Alliance estimates that Google and Facebook collectively capture 90% of digital advertising revenue growth and roughly 60% of total digital advertising revenue in the U.S.

Earlier this year, Google threatened to pull out of Australia, and Facebook wiped news content from its platform in the country. Both walked back their decisions after widespread criticism, but some still fear that digital platforms may ditch news publishers rather than pay them.

Penny Abernathy, a professor at Northwestern University Medill School of Journalism, said the tech companies’ reversals suggest they understand how important the issue is to their users. Coffey pointed out that after Google shut down its Google News service in Spain in 2014, traffic to Spanish news sites remained steady in the long term. Some sites even saw improvements in traffic and revenue as people went directly to the sites instead of clicking through a third-party platform.

The rise of legislation requiring digital platforms to pay news outlets in other countries shows that “the world is moving and we can’t get left behind,” Chavern said. That, and the current misinformation crisis may make American legislators more likely to support the Journalism Competition and Preservation Act.

“The cost of misinformation is clearer than it’s ever been. I think, in particular, the events of Jan. 6 brought into sharp focus the real-world effects of having an online ecosystem dominated by misinformation,” Chavern said. “The antidote to misinformation is good information, and that’s what we create and provide.”

The safe harbor bills are just one sign of increasing pressure to curb the power of Google and Facebook. Both companies face antitrust lawsuits that have widespread support. For example, one of the lawsuits against Facebook was jointly filed by the Federal Trade Commission; Washington, D.C.; Guam and 46 states.

The House Judiciary antitrust subcommittee is set to hear testimony from Chavern, NewsGuild president Jonathan Schleuss, National Association of Broadcasters Chair for Television Emily Barr, Microsoft President Brad Smith and others on Friday. The hearing is part of an investigation, which began in June 2019, into how tech companies affect news organizations and their ability to generate advertising revenue.

In recent years, legislators have introduced a number of bills to help the news industry. They range in approach from direct subsidies for news subscribers and local journalists to requirements that a certain portion of government advertising be placed with local news outlets.

On Wednesday, the House passed the much-anticipated $1.9 trillion COVID-19 relief bill. Included in the stimulus package is pension relief for community newspapers, which will give them more flexibility in funding pensions. Former McClatchy CEO Craig Forman wrote in an op-ed that if a similar measure had been passed last year, the company could have avoided filing for bankruptcy.

Abernathy, who has authored four reports on the state of local media, said she has noticed awareness of the industry’s plights grow in recent years. In 2016, her first report didn’t gain much traction. But her 2018 report garnered a strong response from those in the industry.

“The 2020 report, it really ricocheted and resonated around the world,” Abernathy said. “There has been a growing awareness first in the industry and second, among policymakers and alike that there’s a vacuum that’s been created. You just cannot get the news that you used to.”

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Angela Fu is a freelance reporter based in Birmingham, Ala. and a contributor to Poynter.org. She can be reached at afu@poynter.org or on Twitter @angelanfu.
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