Yesterday, the Senate Committee on the Judiciary voted 15–7 to advance the worrying Journalism Competition and Preservation Act (JCPA). 

This bill would carve out an antitrust exemption for news media, enabling journalistic groups to band together as “joint negotiation entities” to demand payment from major digital platforms (such as Meta and Google) for links to and previews of their publications. If the joint negotiation entity cannot reach an agreement with the platform, the journalists would be able to force independent arbitration to set the payment level.

Last month, we explained why this amounted to a government‐​sanctioned local newspaper industrial policy. Big tech platforms would be forced to pay to subsidize journalists, with arbitrators compelled to ignore any value that digital platforms granted news outlets for sharing their content. 

But two weeks ago, it looked as if the bill might die. Republican Senator Ted Cruz succeeded in adding a content moderation amendment, which would prevent digital platforms from adding conditionality to their payments by asking news outlets to take down certain content, such as political speech. Senator Amy Klobuchar, the bill’s sponsor, immediately withdrew her support, noting that the compromise between her and her Republican colleagues had been effectively “blown up” with the prospect of tech companies having to pay for unsavory sites’ output.

But yesterday, the JCPA returned and took its next step towards a full Senate vote. Cruz and Klobuchar struck a deal and proposed SIL22B36, effectively swallowing the same content moderation amendment that was added two weeks ago. Specifically, it prevents the negotiating parties from discussing how they “display, rank, distribute, suppress, promote, throttle, label, filter, or curate” content. The bill picked up a few more conservative votes with the addition of these content moderation provisions.

Despite this, a majority of the Republican members still opposed the JCPA. Democratic Senators Alex Padilla, Jon Ossoff, and Patrick Leahy voted in favor while maintaining significant reservations too. They noted, as we documented before, that the bill would do nothing to promote competition. It’s instead about forcing a transfer from Big Tech to a favored industry whose revenue was eaten into by the rise of targeted online advertising.

This type of legislation has been dubbed a “link tax” overseas. In 2014, Spainenacted a copyright law that required Google and other news aggregators to pay fees to the Association of Editors of Spanish Dailies. Last year, the Australian Parliament passed the News Media and Digital Platforms Mandatory Bargaining Code which delineated the terms of negotiation between media companies and digital platforms. The JCPA, similarly, uses technology companies as a scapegoat for the difficulties of local newspaper journalism, which has seen its traditional content unbundled as a result of the internet.

As we concluded before, the JCPA would deliver a one‐​sided carve‐​out from antitrust law – and only to a specific industry. It forces platforms to engage in negotiations in “good faith,” subject to final and binding arbitration if no deal can be reached, while banning the platforms from simply delisting forms of content. This will open up a legal minefield, but the impulse is clear: to force payments to journalists from tech companies. As such, this bill is incompatible with free markets and voluntary, mutually beneficial negotiation.

READ MORE:

https://www.cato.org/blog/dangerous-journalism-competition-preservation-act-returns

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