July 26, 2023

Despite pressure from Google and Meta, global momentum is growing for codes similar to one passed in Australia that push the tech platforms to pay for the news they use.

A recent two-day meeting in Johannesburg, South Africa, brought together journalists and scholars from around the world to discuss how to implement such codes and agree on principles that can help with the drafting of the laws. More than 50 organizations have signed on to the principles so far.

In the spring of 2021, Australia passed “world-first” legislation aimed at the power imbalance between large tech companies and news publishers. Since then some $140 million USD has been paid out to Australian publishers. Global interest in such laws is building. Canada passed its C-18 law in June and the United Kingdom is likely to have new competition rules in place by the end of 2023. Indonesia’s president is expected to issue a decree in the coming days and ministers have already been meeting in July to discuss the wording, according to members of Indonesian journalism organizations speaking at the conference. 

The U.S. has lagged, as the bipartisan Journalism Competition and Preservation Act has yet to be passed and California’s push has become a two-year bill, giving lawmakers more time to work out the details.  

The meeting, “Big Tech and Journalism,” organized by Michael Markovitz from the GIBS Media Leadership Think Tank, was an attempt to help policymakers and others involved in drafting agreements to improve upon what Australia and  Canada have done. 

The declaration of global principles drafted at the meeting calls for more transparency as to how payments should be calculated, for smaller outlets to be included and for the funds received to be spent on journalism. 

“Both platforms and publishers should adopt the highest possible degree of transparency so that all parties can judge the fairness of any deal and so that third parties can assess and evaluate the impact of the mechanism as a whole. For example, mechanisms may require platforms and publishers to share data about the size and behaviour of their audiences and advertising placements,” section seven of the principles reads. 

Many journalists from Latin America and Africa attending the meeting were intrigued by the new laws but remain leery of too much government involvement in funding news or deciding who would receive funds from Google and Meta. And they want to ensure that any compensation mechanism accurately reflects the true value of news online or used in artificial intelligence models.

Transparency has remained a sticking point as publishers around the world who receive money from Google and Meta have signed nondisclosure agreements and had disagreements about what level of detail should be required when disclosing commercial deals. The secrecy disadvantaged smaller outlets in Australia as they didn’t know how rates are calculated and what they can ask for. This has meant that globally, teams of lawyers and economists are making their own estimates of what they believe is owed.

In an attempt to forestall legislation, Google is also signing deals in countries where there is no bargaining code. In Taiwan, Google negotiated a three-year deal with publishers worth just $10 million following efforts to promote an Australian-like regulation. In South Africa, the competition authorities in April opened a  market inquiry and are collecting comments, but a law could take a couple of years and publishers there report they are in dire financial straits and need money now.

“These deals are being used to skirt global governance. It’s great that the competition authority has stepped into the fray but we need to look at it from a global perspective,” said Allison Gillwald, executive director of Research ICT Africa.

In South Africa, lawyers for the Publishers Support Services, an industry group, have begun drafting a bargaining-style agreement and showed Google a draft, which has not been made public. At the meeting, held at GIBS Business School, scholars and journalists criticized the opaque drafting process, noting that the wider media fraternity and the public should have a right to comment.

Google has not provided details of the discussions, however, some South African publishers have been told by Google that the company will work directly, through Google News Showcase, as it did in Australia, with the 10 biggest publishers, and that others will be covered by a fund created by Google. Because the deals between Google or Meta and publishers are kept secret it’s not clear precisely how they work. Publishers have said they don’t receive direct payments from the platforms but rather are included in their news products and then some kind of fee. In Australia, publishers have said that Showcase is “a joke” and in Brazil in Spain news is being distributed through “Discover,” a personalized news feed that promotes clickbait.

In South Africa, there are some divisions between publishers, with the South African National Editors Forum and others pushing Google to only fund outlets that are members of South Africa’s Press Council. Google wouldn’t discuss but some involved in talks have said it’s agreed to that condition.

When asked for a comment on the discussions, Google’s Marianne Erasmus, who leads Google’s news publishers and partnerships team for Sub-Saharan Africa and Israel, said, Google is having constructive engagements with South African publishers but it is at an early stage and nothing has been agreed to date. In the meantime we continue to support the South African news ecosystem with access to tools, tech and training.”

Google and Facebook have not only made good on their threats to shut down news in countries considering such legislation, they’ve also used their platforms and influence to lobby against such efforts. In Brazil, Google used its search landing page — along with emails to YouTube creators, evangelicals and small publishers — to warn that a proposed bill would hurt their ability to monetize their content or share bible verses, according to journalist Patrícia Mello Campo. In May, Brazil’s government announced it would investigate Google.

Amid concerns about undue influence and what they have characterized as potentially underhanded lobbying tactics in Australia, Brazil and Canada by the tech giants of the G7 (in other words, not China’s tech behemoths), publishers are trying to prevent divisions within the media industry and combat false perceptions that only big or legacy media benefit from these new regulatory efforts.

“If you move together they cannot break you,” said Helena Rae of BBC Media Action, which is working with Indonesia’s Press Council on a bill modeled on the Australian one. 

Nelson Yap, publisher of the Australian Property Journal, a small specialty news outlet in Australia, has been talking to fellow media leaders around the world about the importance of sticking together and the benefits that the journalism industry has experienced since inking deals with Google, and to a lesser extent, Facebook

“Publishers of all sizes need to band together,” advised Yap.  

But even if publishers obtain collective bargaining rights, they don’t have a clear valuation of their product. Just how valuable is news on Google or Facebook? Should that value be determined by an economic assessment of the marginal benefits of referral traffic versus substitution traffic? And what data do policymakers, much less publishers, have in order to make such decisions?

As part of the valuation process, publishers around the world are tallying what they believe they are owed. In Switzerland, news outlets hired a leading behavioral economist to help them figure out the value of news on Google search. The results were presented to an audience at the conference who welcomed efforts to objectively determine the value of news to the platforms.

The study, by Fehr Consulting, found that when Google search doesn’t include news, users reported that it was a less satisfying experience and didn’t return to it. Using this study of audience behavior the economists argued that the presence of news creates value for Google and calculated that Swiss publishers should receive 40% of advertising or 154 million CHF — approximately $166 million USD. At present there is no agreement to give publishers any of the value they help create, said Alexis Johann, a managing partner at Fehr Advice & Partners.  

A global standard for what Google and Meta owe publishers is emerging. Publishers associations in a number of countries have begun tallying what they believe they are owed, and policymakers are increasingly interested in redressing competitive imbalances from these dominant platforms. 

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Anya Schiffrin is a senior lecturer at Columbia University’s School of International and Public Affairs and writes regularly on the bargaining codes.
Anya Schiffrin
Dr. Courtney Radsch is a fellow at UCLA’s Institute for Technology, Law and Policy and Director of the Center for Journalism and Liberty at Open…
Courtney Radsch

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