At the end of March, U.S. Senators Amy Klobuchar (D-MN) and John N. Kennedy (R-LA) reintroduced the Journalism Competition and Preservation Act (JCPA). After being dropped from a defense-spending bill in December, the bill’s sponsors hope to get the legislation across the finish line. If passed, publishers would be able to collectively negotiate with tech companies like Facebook and Google to get fair compensation for their online content.
The bill has been proposed several times previously, and it has strong bipartisan support, but when Meta threatened to pull news from Facebook if it passed, Congress removed the JCPA language from the defense spending bill. Klobuchar, who is the chairwoman of the Senate Judiciary Subcommittee on Competition Policy, Antitrust and Consumer Rights, wants to ensure the survival of local news organizations who compete against huge online technology platforms.
“As the daughter of a newspaperman, I understand firsthand the vital role that a free press plays in strengthening our democracy. But local news is facing an existential crisis, from ad revenues plummeting and newsrooms across the country closing to artificial intelligence tools taking content. To preserve strong, independent journalism, news organizations must be able to negotiate on a level playing field with the online platforms that dominate news distribution and digital advertising,” said Klobuchar in a March 31, 2023 news release.
“Our bipartisan legislation ensures that media outlets can band together and negotiate for fair compensation from the Big Tech companies that profit from their news content, allowing journalists to continue their critical work,” Klobuchar added.
Kennedy added that local newspapers are the “heart and soul of journalism,” and they break local stories to their readers every day. But big tech platforms are not compensating publishers fairly or negotiating with them in good faith to receive payment for their work.
In addition to Klobuchar and Kennedy, the bill is co-sponsored by Senators Dick Durbin (D-IL), Steve Daines (R-MT), Richard Blumenthal (D-CT), Bill Cassidy (R-LA), Sheldon Whitehouse (D-RI), Lindsey Graham (R-SC), Susan Collins (R-ME), Joe Manchin (D-WV), Cynthia Lummis (R-WY), Cory Booker (D-NJ), and Roger Wicker (R-MS).
If passed, some of the provisions of the Journalism and Competition Preservation Act include the following:
- Allow digital journalism publishers with fewer than 1,500 exclusive full-time employees and news broadcasters to collectively negotiate with platforms on pricing, terms and conditions
- Require platforms with at least 50 million U.S.-based users or subscribers and are owned or controlled by a person with either net annual sales or market capitalization greater than $550 billion or at least 1 billion monthly active users worldwide to negotiate in good faith with qualifying news organizations
- Prohibit discrimination by a joint negotiation entity or a covered platform against an eligible digital journalism provider based on its size or the views expressed in its content and provide a private right of action for violations of this prohibition.
- Prohibit retaliation by a covered platform against eligible digital journalism publishers for participating in joint negotiations or arbitration and provide a private right of action for violations of this prohibition.
Precedent in other countries
In effect since March 2, 2021, Australia has a similar law, the News Media and Digital Platforms Mandatory Bargaining Code, which focuses on online content and publishers’ ability to negotiate fair payment. The purpose of the legislation was “to support the sustainability of the Australian news media sector, which is essential to a well-functioning democracy.” Meta had threatened to pull its news content from Australia as well, but Google and Facebook have reached voluntary commercial agreements with many of the country’s news media organizations.
“The Code will ensure that news media businesses are fairly remunerated for the content they generate, helping to sustain public interest journalism in Australia. The Code provides a framework for good faith negotiations between the parties and a fair and balanced arbitration process to resolve outstanding disputes,” said the Honorable Josh Frydenberg MP, Treasurer, in a February 25, 2021 news release.
“Importantly, the code encourages parties to undertake commercial negotiations outside the Code and the Government is pleased to see progress by both Google and more recently Facebook in reaching commercial arrangements with Australian news media businesses,” Hon. Frydenberg added.
In April 2022, the Canadian Government introduced Bill C-18, the Online News Act, which would essentially provide similar protections and support for digital publishers that the proposed JCPA would. As expected, Meta vows to end news access in Canada if the Online News Act passes, according to Reuters.
“A legislative framework that compels us to pay for links or content that we do not post, and which are not the reason the vast majority of people use our platforms, is neither sustainable nor workable,” a Meta spokesperson said.
News/Media Alliance supports JCPA
After the Journalism and Competition Preservation Act legislation was reintroduced before the 118th Congress, News/Media Alliance Executive Vice President and General Counsel Danielle Coffey offered the organization’s support.
“The time is now to pass this critical legislation that will protect and sustain local journalism, now more important than ever to ensuring an informed society. Emerging technologies such as AI are making it even more clear the need for compensation when content creators may soon see even less return than what they receive today. The cost of inaction is simply too great to ignore any longer. We must ensure that the digital ecosystem returns value back to the people who deliver high-quality journalism we all rely on around the world,” Coffey said in a March 31, 2023 news release.
“We are grateful to Chair Klobuchar and Senator Kennedy for their commitment to quality journalism, and we look forward to working with them to ensure small and local news publishers receive fair compensation from the platforms for the valuable journalism they work tirelessly to provide. News publishers need a lifeline, and the JCPA is that lifeline,” Coffey added.
Though we had not yet seen a statement from Meta about the reintroduction of the JCPA, it is likely to be similar to their December 5, 2022 statement tweeted by Andy Stone of Meta.
As digital news publishers ourselves, we support the Journalism and Competition Preservation Act, and we love the momentum that it’s getting in the U.S. among media organizations, supporters and individual legislators. At the same time, we’re realistic. The Metas and Googles of the world have the power to influence the legislature and make good on their promises to pull news from their platforms, further harming news organizations who rely on those outlets for readers and subscribers. What we hope will happen is that big tech will see that this trend is going to continue globally, and they will opt to negotiate with publishers, so that everybody gets what they need.