The Journalism Competition and Preservation Act, a bipartisan bill, would be the first piece of legislation to fundamentally challenge the business model for social media giants, forcing them to give major journalistic organizations a cut of their ad revenue.
As lawmakers consider whether to attach the measure to end-of-the-year spending packages, Google and Meta are pouring money into two, seemingly contradictory messages in an effort to defeat it.
The full-court strategy plays on left- and right-wing concerns about social media: According to the messaging, the JCPA is simultaneously a legislative proposal backed by liberals to “silence conservative voices” and a far-right effort that will fund pro-Trump voices that are the source of “dangerous misinformation.”
The exaggerated rhetoric was part of a larger campaign to stop any proposal to share advertising revenue, the main source of income for social media and search engine tech companies. The message designed to orchestrate Republican opposition to JCPA is sponsored by NetChoice, and the message designed to whip up Democratic opposition to JCPA is sponsored by the Computer and Communications Industry Association. Both organizations are funded by Google and Meta, Facebook’s parent company, and serve to influence lawmakers and the public on behalf of shared concerns by the two megacorporations.
Earlier this week, reports leaked that sponsors of JCPA — including Sens. Amy Klobouchar, D-Minn.; John Kennedy, R-La.; Cory Booker, D-N.J.; and Chuck Grassley, R-Iowa — had convinced Senate leaders to include the legislation as a provision of the National Defense Authorization Act, a sweeping bill that funds the military. The bill passed the Senate Judiciary Committee in September.
The lobbying blitz has so far been successful; the bicameral NDAA text, released Tuesday evening, does not include the JCPA, a reversal that reflected Silicon Valley’s influence over congressional leadership.
While the NDAA path appears closed, supporters of the JCPA hope for a potential deal to include the legislation in the omnibus spending package Congress will take up later this month.
The JCPA, which was modeled on a novel 2021 Australian law, would provide a legal exemption to antitrust rules for media outlets to collectively bargain with Silicon Valley platforms for a slice of the advertising revenues they help generate.
Proponents argue that Google and Facebook’s domination over the online advertising industry has decimated the traditional news business model. While social media companies report profits in the billions of dollars, the news industry has seen the destruction of over 70 daily and 2,000 weekly news outlets since 2004. One Pew Research Center survey, taken before the pandemic, found that U.S. newsrooms had shed 30,000 positions since 2008, a number that has likely grown over the last two years.
Proponents of the JCPA point to the relative success of the Australia model, which led to AU$200 million in revenue sharing with news publishers. Many publications large and small have reported success from the deal, including The Guardian, which increased its newsroom in Australia by 50 journalists following a negotiated deal.
One point of contention is what types of media outlets would qualify for a collective bargaining role and how negotiations might impact editorial content. During committee debate over the Senate draft of the JCPA legislation, Sen. Ted Cruz, R-Texas, successfully added provisions to “the bill’s antitrust exemption only to discussions of pricing terms while explicitly excluding any discussions or agreements between Big Tech and media outlets that concerns content moderation,” according to a release from his office.
The Australian bargaining law has brokered deals for large established newspapers and broadcasters, as well as some smaller publishers. Nelson Yap, the editor of the Australia Property Journal, noted in an email to The Intercept that his publication was able to join a group of 24 local small publishers to negotiate a deal with Google, which helped his outlet expand its news team. Meta, however, refused to negotiate with the collective of small Australian publishers.
The tech industry is wary of the Australia model spreading to other parts of the world. A similar bill is being debated in Canada.
In addition to the television advertisements from NetChoice and CCIA, the news that the NDAA may include the news bargaining legislation triggered alarm from a range of left- and right-wing nonprofits funded by the tech industry, attacking the proposal as misguided.
The Chamber of Progress, a Google and Meta trade group oriented toward influencing liberals, warned that JCPA would supposedly deliver seven times the revenue sharing to conservative outlets than local media. The R Street Institute, which receives funding from Google, appeared on Breitbart News’s radio program to warn that JCPA will only help “big media conglomerates” at the expense of small conservative outlets.
A coalition letter released Monday by tech funded nonprofits, including NetChoice, the Copia Institute, and Chamber of Progress, claimed JCPA will “increase the amount of networked disinformation, hate speech, and harassment.”
“I think it’s a lot of astroturfing,” said Jon Schweppe, the director of policy and government affairs at the American Principles Project, a right-leaning watchdog group that warns against the influence of the tech industry. “These guys, the big tech companies, are brilliant at doing the double talk to both sides at once.”
Andy Stone, a spokesperson for Meta, said in a statement that his company would be “forced to consider removing news” from Instagram and Facebook rather than submit to revenue negotiations with news publishers.
The threat mirrors the debate around Australia’s News Media Bargaining Code. During debate over the law, Google claimed the Australian proposal would “break” its search service, and Facebook similarly threatened to pull out of Australia and ban links to Australian news sites. Google even claimed that the proposal “could lead to your data being handed over to big news businesses.”
In the end, the tech industry backed down. After a brief shutdown, Facebook returned to Australia and, along with Google, participated in negotiations with publishers.
“As we are seeing with the JCPA, Australia also experienced big tech propaganda against its News Media Bargaining Code,” said Emma McDonald, a senior policy adviser at Minderoo Foundation, an Australian philanthropic organization that backed the bargaining law.
“Facebook and Google have been free-riding on the coattails of media publishers for years. The code addresses the bargaining imbalance and made big tech pay their fair share,” McDonald added. “It has worked in Australia and there is no reason why it won’t work in the US. Small publishers collectively bargained with Google and they got a good deal.”