Last week, a bipartisan group of legislators led by Amy Klobuchar, the Democratic senator from Minnesota, introduced a revised version of a bill they say will allow news outlets to bargain for “fair terms from gatekeeper platforms that regularly access news content without paying for its value.” The bill, called the Journalism Competition and Preservation Act, was originally introduced by Klobuchar last year, and modeled after a similar bill with an identical name, introduced by US Rep. David Cicilline in 2018 . The law would grant media companies “safe harbor from antitrust laws…to collectively negotiate with online content distributors” such as Google and Facebook for compensation, in return for allowing those same platforms to aggregate and/or distribute their articles..

The act is also similar to an Australian law known as the News Media and Digital Platforms Mandatory Bargaining Code, which that country passed last year amid a storm of controversy. Before the code became law, Facebook tried to dissuade Australia’s parliament from passing it by blocking the country’s news publishers from posting their own content, and blocking Facebook users in Australia from posting news provided by non-Australian outlets. (Google showed users a pop-up warning them that the law would degrade their internet experience.) Like the Australian law, the Journalism Competition and Preservation Act requires Google and Facebook to enter into negotiations —either with individual media outlets or with groups of outlets—over payment for their news content. If the two sides are unable to reach an agreement, then, as with the Australian version, the Journalism Competition and Preservation Act would require the digital platforms to submit to binding arbitration. 

In Australia, there have been no such cases of binding arbitration since March 2021, when the code was passed. Following its passage, Google and Facebook quickly signed deals with news publishers and broadcasters, including one where Google pays Nine Entertainment—which owns a TV channel, radio stations, the Sydney Morning Herald , and The Age, in Melbourne— $22 million a year for five years. (Facebook agreed to pay the same company about $15 million, though it said the payment was separate from the code.) Critics argued that Australia’s code would benefit only large entities such as those owned by News Corp Australia, which received an estimated $50 million USD from the platforms. Supporters of the code, however, say that hasn’t been the case . Bill Grueskin, a professor at Columbia University’s School of Journalism, wrote for CJR in March that some local journalists believe the Australian law has revived the news business. Monica Attard, a journalism professor, told Grueskin that, since the code’s passage, she “can’t persuade many students to take internships these days because it’s so easy for them to land full-time jobs.” 

The US isn’t the only country to take inspiration from Australia’s law. “ Canada and the United Kingdom are moving to enact similar codes” for their own media industries, Grueskin wrote, “while officials in Indonesia and South Africa have voiced plans to do the same.” Despite the money that has flowed into the Australian media business, Grueskin noted, one of the downsides to that country’s approach is that there is virtually no transparency to the deals. “Australia looks like a success story to those who’ve long yearned to force Big Tech to prop up suffering newsrooms. But it’s a murky deal, with critical details guarded like they’re nuclear launch codes,” Grueskin wrote . “If you want to know how much money the platforms have paid to news organizations, you’re out of luck.” The same lack of transparency, he noted, extends to how news organizations spend that money—whether they use it to “bolster journalism” or to “pad executives’ salaries.” 

The revised version of Klobuchar’s bill requires outlets to annually disclose how much they received from the platforms. It also requires that platforms negotiate with media groups “in good faith,” restricts the process to outlets with fewer than fifteen hundred employees, and limits the law’s support to outlets that have “a dedicated professional editorial staff that creates and distributes original news and related content concerning local, national, or international matters of public interest.” The News Media Alliance, which supports the bill, notes in a Q&A that the Journalism Competition and Preservation Act “is inclusive of conservative publications, such as Breitbart , t he Daily Caller , Newsmax, and t he Washington Times. ” (The NMA’s website includes a list of opinion and editorial pieces supporting the act, including from t he Daily Caller and Newsmax.)

Despite the apparent success of Australia’s law, a number of media watchers remain critical of the idea’s application in the US. Politico ’s Jack Shafer writes that “taxing tech companies for the failure of the news industry is just unfair,” because Google and Facebook didn’t kill newspapers; rather, the industry’s injuries are “self-inflicted.” The per-capita decline in newspaper circulation started in the post-WWII era, he notes, “and advertising revenue peaked in 2005.” For its part, the News Guild says the bill “still lacks sufficient guardrails to make sure the added revenue is dedicated to employing journalists and to better serve readers.” 

Mike Masnick, writing at Techdirt , says the requirement that news outlets have no more than fifteen hundred employees could backfire . “This bill basically says ‘buy up large newspapers and cut them to under 1,500 employees,'” he writes. He also questions the rationale behind the bill. “News orgs beg these sites for traffic. They hire SEO people to try to get more,” he argues. “Now they’re also getting to FORCE the internet companies to PAY them for that traffic?” The act would also prohibit platforms from removing links or content as a way of getting out of payment negotiations. 

Others warn that even if these kinds of laws mean that money flows from the tech platforms into the news industry, that dynamic may lead to smaller outlets becoming dependent on that lifeline, to their detriment. “What if Google decides it’s a bad deal for them?” Matt Nicholls, who edits—and writes most of the stories for—the Cape York Weekly , in Queensland, asked Grueskin . “If you need Google funding to prop up your journalism, to keep your journalists employed, that’s not sustainable.”

Here’s more on journalism and funding:

Some news from the home front: On Tuesday, September 13, at 4pm Eastern, CJR and Columbia’s Lipman Center for Journalism and Civil and Human Rights will host an event focused on objectivity and the future of journalism. The participants will include The New Yorker’s Masha Gessen, the historian David Greenberg, the Pulitzer Prize–winning journalist Wesley Lowery, Columbia Journalism School’s Andie Tucher, and Lewis Raven Wallace, author of The View from Somewhere: Undoing the Myth of Journalistic Objectivity. The event will be livestreamed, or you can register to attend in person in New York. More details here.

Has America ever needed a media watchdog more than now? Help us by joining CJR today.

TOP IMAGE: Trib Total Media President and CEO Jennifer Bertetto, left, greets Ranking Member Sen. Mike Lee, R-Utah, right, before a Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights hearing entitled "breaking the news - journalism, competition, and the effects of market power on a free press" on Capitol Hill in Washington, Wednesday, Feb. 2, 2022. (AP Photo/Andrew Harnik)

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