The free press versus Facebook and Google

So it’s pretty difficult at this point to argue credibly that these platforms are not in some sense publishers. Big Tech platforms are increasingly using their considerable publisher power to decide what content, sources and values should disappear or be amplified. These companies have more in common with The New York Times, Bild and Rupert Murdoch than they do with an online wikiboard or free speech corner in London’s Hyde Park.

Indeed, Facebook’s and Google/YouTube’s algorithmically curated machines, with 2.6 billion and two billion users respectively, are the largest publisher and broadcaster in human history. Yet existing law does not treat these companies like a publisher or broadcaster, especially when it comes to liability or accountability. The digital media platforms hide behind the fact that they have billions of users generating content, which resembles a ‘common carrier’ or public square role. But that should not obscure the centrality of their publisher role.

From that perspective, Facebook, Google and Twitter are completely within their publisher’s rights to decide it does not want to publish Donald Trump any more, just as The New York Times would be. Or just as Rupert Murdoch has an editorial right to feature Boris Johnson on the front page of The Sun or at the top of a Fox News broadcast. Facebook’s Oversight Board should take note.

Threat to the open internet?

Critics of the Maryland and Australian approach claim it threatens the principle of an open internet. They also insist that traditional media outlets actually benefit when Facebook/Google/Twitter send user traffic back to the news outlets. The latter claim is easily debunked, since ad revenue at traditional media outlets has plummeted in the digital media platform era, while it has zoomed for the platforms. One study found that digital media traffic supplied less than 0.2% of total revenue to the news companies examined (while producing 24% of their total visitor traffic). So whatever revenue the traditional media outlets have received, it’s a drop in the bucket compared to what they have lost.

And the ‘open internet’ principle must be balanced by the ‘copyright principle’, which was established years before the Internet was even invented. Copyright law mandates that any individual person or organization cannot swipe someone else’s content and monetize it without paying for it. The open internet principle essentially demands that traditional news sources bear the financial burden of continuing to produce quality news without fair compensation – much as it demanded that Napster be allowed to distribute copyrighted music for free without compensating musical artists and record companies.

The open internet principle is contributing to media financial instability throughout the world and taken to its logical conclusion will cannibalize what’s left of the news media. With no credible news sources to rely upon, the digital media platforms would be even more overrun by the barbarian disinformation for which the platforms have become notorious. They are eating their own seed.

Already the digital media platforms have turned thousands of publishers and broadcasters into little more than ghostwriters for their platform content. Facebook has transmogrified from its initial hip mission of being a convenient place to post your vacation and puppy pics, and re-find your long lost college roommate, into a ‘re-publisher’ that re-packages and monetizes product from the original producer without paying for it. In other industries, that’s called theft.

Democracies must stop this Big Steal before these companies do away with our democracies. France and Austria have passed similar laws, Canada says it will adopt the Australian approach, and possibly India too.

But the EU and US have been noticeably silent. Both are known for encouraging competition and a vibrant media, so you would think their regulators would jump into action to aid the free press. Unfortunately, the reaction from the Biden administration has been non-existent, though understandably it has a lot on its plate in its first months.

The European Commission’s silence has been more disappointing. Its two-year old Copyright Directive has been barely implemented, and now it’s championing its recently unwrapped Digital Services Act and Digital Markets Act. But those anodyne proposals lack regulatory teeth and, like the GDPR, do not fundamentally challenge the digital platforms’ toxic business model.

It’s time for governments on both sides of the Atlantic to step up their games, and ensure that Big Tech media respect the sanctity of copyright and stop undermining the world’s media and news outlets.

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