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Controversy over US platform bargaining proposal heats up

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The debate follows Australia’s adoption of a law requiring tech companies to negotiate with news organizations over access to their content.

Australia’s recent adoption of a law requiring companies like Facebook and Google to negotiate with news organizations over access to their content produced a dramatic confrontation between the tech firms and the Australian government, including a brief spell during which Facebook shut down news sharing entirely. Now, with Australia’s law in effect, the battle has shifted to other jurisdictions — including the United States, where a House subcommittee recently heard testimony on a related proposal.

The hearing, “Saving the Free and Diverse Press,” was part of a series held by the House Judiciary panel responsible for antitrust policy. Rep. David Cicilline (D-RI), chairman of the subcommittee, took the occasion to reintroduce the “Journalism Competition and Preservation Act of 2019,” which would provide news organizations with a (temporary) exemption from antitrust liability for “collectively withhold[ing] content from, or negotiat[ing] with” major tech platforms over the terms on which the platforms can distribute their work. Cicilline’s Republican counterpart on the panel, Rep. Ken Buck (R-Colo.), has signed on as a co-sponsor, according to Reuters; a Senate companion bill is backed by Sens. Amy Klobuchar (D-Minn.) and John Kennedy (R-La.).

While the text of the bill as introduced isn’t available via as of this writing, Reuters reports that the latest version differs somewhat from the 2019 proposal in that it includes broadcasters within the class of organizations entitled to the exemption. Broadcasters’ exclusion had been a point of criticism for some skeptics of the previous version of the legislation; still, that tweak is unlikely to put to rest the broader debate over Cicilline’s push. (The Reporters Committee has not taken a position on this or any comparable legislative proposal.)

This month’s hearing, for instance, drew headlines as much for the sparks it generated between the tech firms as it did for its substance. Microsoft President Brad Smith, one of the witnesses, backed the bill — as Microsoft had Australia’s legislation — and urged the panel to add in some of the Australian version’s teeth, such as “an obligation to negotiate in good faith.” Google published a critical blog post in response, arguing Microsoft was “willing to break the way the open web works in an effort to undercut a rival.”

If that opening salvo is any indication, further movement in this direction will be accompanied by considerable public discussion. We plan to continue tracking these proposals as they move, or don’t move, through Congress in the months ahead.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.

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