In the name of protecting journalism and media diversity, Congress has come up with a bizarre scheme: an antitrust law carve-out that allows media companies to collude and form cartels to push big tech into toeing their line.
The Journalism Competition and Preservation Act (JCPA) is a bipartisan bill that’s being debated by both houses of Congress and is supported by media industry groups like the News Media Alliance. It comes with altruistic promises to support fledgling local newspapers by forcing tech platforms to pay their “fair share” for news, and allowing outlets to boost their bargaining power by collectively negotiating with others.
Unfortunately, it’s unlikely to achieve this. Instead, a history of similar experiments shows it’s likely to entrench the interests of dominant news giants while encouraging censorship and undermining independent media.
The JCPA isn’t a novel idea. Back in the 1970s, the Newspaper Preservation Act (NPA) provided an antitrust exemption intended to help the newspaper industry survive the rise of television, which had quickly become the dominant news medium. It allowed competing newspapers in the same region to combine their businesses through joint operating agreements if one was deemed to be at risk of ‘failing.’
The New York Times warned that the bill could “become a shield to established publishers against the entrance of new journalistic competitors.” As predicted, smaller and local newspapers continued to decline in the following years while large media conglomerates grew and became more profitable. When joint agreements were dissolved, the smaller outlets that participated in them often did too. Today, the United States is home to a highly concentrated media market.
The NPA isn’t the only law that has tried to give news media an artificial advantage to adverse effects. In 2014, Spain introduced a “link tax” that forced news aggregators like Google News to pay Spanish news outlets for clicks on links displayed on the platform. Google responded by shutting down Google News Spain. This resulted in lost revenues and viewership across Spanish media, but smaller outlets relying on external aggregation to attract viewers were particularly affected.
Larger, more established players retained most of their existing audience. Instead of supporting a diverse, competitive news environment, the link tax caused ‘audience fragmentation,’ whereby the overlap between audiences of different outlets reduced, sheltering individuals from exposure to alternative editorial viewpoints.
Such bills are also unlikely to punish tech giants. The Australian bill that inspired the JCPA “forced” Facebook and Google to enter into arrangements to share ad revenue with large news companies. Its passage was hailed as a victory for Aussie news media over American big tech. But the bill came at the same time that the social media giants were already planning to enter the news space through applications built into their platforms.
This would normally involve bringing media content production and advertising under one roof by buying media companies or their news operations. But that would turn Facebook and Google into publishers instead of platforms, and could violate antitrust laws.
The Australian bill inadvertently solved this problem for the tech giants. Being “forced” to enter commercial arrangements with large news companies means that Facebook and Google can provide a news subscription service by “licensing” content from multiple outlets while bearing none of the costs or legal risks of producing news.
Those will still be borne by traditional “publishers” while the social media giants retain their platform status as well as the ability to choose what their users see. The largest or most established media companies still benefit as they can work out better deals with the social media companies than their competitors. Smaller outlets with lower viewership are less likely to attract lucrative deals.
This phenomenon of government-approved big tech-big media collusion to the detriment of smaller media is likely to repeat itself in the United States with the JCPA. The measure could allow for established media to ban together and demand that social media companies censor their smaller competitors. If that sounds far-fetched, consider how big media has already pressured Google to manipulate search results, Twitter and Facebook to censor outlets, and Youtube to take down content to combat what it deems to be misinformation.
Granted, sometimes such content or those producing it are genuinely dubious. Even so, giving organizations with a vested interest in censoring their competition more negotiating power and thereby more power to demand censorship, ought to give us pause. Especially when it comes to controversial topics where rapidly changing scientific understanding and new information mean that today’s “conspiracy theory” or “speculation” could be confirmed tomorrow. Consider Dr. Anthony Fauci’s u-turn on the plausibility of COVID-19’s lab leak origin, previously deemed by established media journalists to be a “racist” conspiracy theory.
Presenting the JCPA as a solution for the difficulties faced by regional and smaller news organizations who’ve only benefited from the access to viewership afforded to them in the digital age by social media platforms, is a smokescreen for a bill that’ll benefit established players through privileges granted to no other industry. Congress shouldn’t kowtow to big media lobbying to pass the JCPA.
• Satya Marar is a tech policy fellow at Young Voices.