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One and a half years ago, the Australian parliament adopted legislation creating the News Media Bargaining Code, a revolutionary measure aimed at protecting news publishers from the dominance of a few big online platforms.

Online platforms like Facebook and Google control the digital advertising ecosystem, collect the vast majority of ad revenues and data, and make important decisions on how and what information users see at any given time. They rely on news content to keep users on their platforms but have no incentives to pay for it – they have little regard for any single publisher, while the realities of the current digital marketplace mean that all publishers, small and large, depend on Google and Facebook to reach readers. Consequently, as the platforms are unavoidable trading partners for publishers, they hold all the leverage when it comes to defining the terms of their partnerships.

Like the Journalism Competition and Preservation Act (JCPA) – a competition-based solution introduced in the U.S. Congress – the Australian Code does not attempt to solve all the problems faced by news publishers in the online ecosystem. Instead, the sole purpose of both measures is to balance the playing field between publishers and online platforms, creating a more sustainable foundation for the preservation of high-quality journalism.

Now, as the JCPA is making progress in Congress, it is a good time to evaluate the success of Australia’s Code.

How the Australian Bargaining Code Works

The News Media Bargaining Code is based on the simple idea that, in order to level the playing field between news publishers and online platforms, news publishers must be allowed to negotiate effectively – and collectively if necessary – with the platforms, backed by a binding arbitration process in case a settlement is not found. To do so, the Code allows eligible publishers that publish so-called “core” news to engage in good faith negotiations with designated online platforms – with any designation decision informed by whether the platform has made a “significant contribution to the sustainability of the Australian news industry through agreements relating to news content of Australian news businesses.”

If no settlement is reached within a set time period, news publishers are allowed to seek “final offer” arbitration where the arbitrator must select one of the two offers made by the parties. Even if arbitration is never used, its existence may force meaningful negotiations.

Prior to the Code, the platforms routinely claimed that they provide more to publishers than they get in return and refused to negotiate for fairer terms or compensation. The Code therefore lays out the basis for negotiations that would have been unimaginable without it. This in itself makes the Code a significant development that should be emulated around the world. But the real-life results provide even more compelling reasons.

The Australian Code Has Been an Overwhelming Success

Despite the numerous scare tactics employed by Google and Meta during the drafting of the News Media Bargaining Code, the evidence from the past 1.5 years shows that the Code has been an overwhelming success. Based on an estimate by the former Chair of the Australian Competition & Consumer Commission Rod Sims, the Code has resulted in over AU$200 million payments from Google and Meta to news publishers, despite neither company having yet been designated under the Code – the mere threat of designation has led both companies to engage in meaningful negotiations with publishers. Sims estimates that the compensation amounts to approximately 20 percent of Australian journalists’ salaries and likely more than 20 percent of eligible publishers’ combined earnings before interest, taxes, depreciation, and amortization (EDITBA).

These deals have been reached with publishers large and small, despite critics arguing that only large publishers would be likely to benefit. However, this has not proved to be the case.  For example, Country Press Australia – representing approximately 180 publications and 60 news publishers –  reached a deal with both Google and Meta, and more recently, Minderoo Foundation reached a deal with Google on behalf of 24 small media outlets. As a result, Google has reached a deal with almost all qualifying news publishers, while Facebook has reached far fewer deals and even refused to negotiate with some. Some estimate that Facebook is under threat of being designated under the Code due to these refusals.

The Bargaining Code Has Been Great for Journalists

Notwithstanding arguments to the contrary, there is also evidence that the Code has led to considerable improvements for journalists, instead of enriching large publishers. Not only has The Guardian increased its newsroom employment from 70 to roughly 150 journalists, in large part due to revenue received under the Code, the Australian Broadcasting Company announced in December 2021 that it was creating more than 50 journalist positions in regional locations as a result of the Code. Overall, this is a good time to be a journalist in Australia with journalism lecturers noting increased employment for their students and an oversupply of available of positions.

It is estimated that the Australian Code has forced Google and Meta to reach deals with publishers that employ over 90 percent of Australian journalists and brought in more money than most publishers expected. As Rod Sims noted, the Code has met almost all of its objectives quicker than almost anyone expected – a policy instrument that reaches most of its objectives sooner than expected and benefits over 90 percent of its expected beneficiaries simply cannot be called a failure.

Australia has demonstrated that change is possible and that the bargaining imbalances between news publishers and the dominant online platforms can be corrected. Despite the scaremongering during the drafting process, the Code did not fundamentally alter the functioning of the free and open web or reduce media diversity. Instead, it has created a more sustainable future for high-quality journalism in Australia with significant additional resources available to newsrooms.

Congress Must Act and Pass the JCPA

It is now time for the United States to follow suit. News deserts are spreading across the United States at an alarming pace, leaving far too many communities without local newspapers. Inaction is not an option if we want to preserve these vital public institutions. The Journalism Competition and Preservation Act would likely lead to substantial payments to small, local newsrooms across America proportionally equal to what we have witnessed in Australia, providing a lifeline for publishers who most need the help. The Australian experience shows this can be done.

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In mid-March, Politico published a powerful piece of investigative reporting titled “How Washington fumbled the future,” detailing the Federal Trade Commission’s (FTC) 2012 investigation into Google’s anticompetitive conduct and the agency’s failure to bring a case against Google.

The report is both revealing and damning, exposing how clear the evidence against Google was already nearly ten years ago and how the FTC’s refusal to take action has allowed Google to further entrench its dominant position in the online ecosystem. By laying out the many ways in which Google stifles competition, the memos serve as further evidence of the unequal playing field between Google and news publishers.

The memos published by Politico include a 170-page analysis drafted by the FTC’s antitrust lawyers, a memo by two of the agency’s economists, as well as other documents addressing the claims made against Google by other companies ranging from competitors like Microsoft and Yahoo! to others who rely on Google, including Amazon, TripAdvisor and Yelp.

The FTC’s standard practice is to request two analyses of the case in any antitrust investigation, one by antitrust lawyers and one by economists, with the economists seen as the more conservative and cautious of the two. Here, although both groups made some clearly unfounded assumptions – including noting that behavioral advertising has only “limited potential for growth” – and the economists recommended not pursuing the case, the lawyers made a convincing argument and found Google’s behavior deeply troubling in many instances.

The lawyers’ memo focuses on four main complaints against Google: self-preferencing of Google’s own content in search results, scraping of vertical rivals’ content to improve Google’s own products, contractual restrictions regarding the use of AdWords, and exclusionary terms in syndicated search and search advertising service agreements.

While the documents do not discuss news publishers in particular, news organizations have long experienced first-hand the effects of many of the issues highlighted in the memos. Scraping of content is not limited to Yelp and TripAdvisor reviews; Google regularly scrapes news content to answer user queries in both search and audio, diverting readers from news sites. Similarly, publishers were effectively forced to adopt Google’s AMP format or risk their content being downgraded in mobile search results, leading to reduced visibility for high-quality news content.

With regards to Google’s exclusionary agreements for search and search advertising, the memos paint a picture of a company willing, at least in some cases, to indirectly force others to abandon any efforts to develop or do business with competing products and services. As one example, the lawyers’ memo discusses efforts by CityGrid – a property owned by IAC, which at the time owned more than 50 different websites, including Ask.com and Newsweek – to mix-and-match search advertising providers in addition to developing its own digital advertising platform. Not only did its efforts to use other providers alongside Google’s AdSense seem to have failed, with CityGrid eventually being “forced” to sign onto the IAC’s umbrella agreement with Google that did not allow it to use other networks, Google’s exclusivity provisions made developing a “niche competitive alternative” to AdSense difficult.

CityGrid’s experience exemplifies the challenges faced by publishers and others when dealing with Google. The combination of aggressive acquisitions and lax antitrust enforcement has allowed Google to achieve a dominating position where publishers are forced to use Google’s services in order to take part in the digital marketplace, while accepting terms that clearly disadvantage them at the benefit of Google. CityGrid’s difficulties establishing a competitive ad platform may present just the tip of the iceberg – it is possible that Google’s unfair terms, together with its market position, have dis-incentivized or even downright squashed the development of other ad platforms that would provide publishers with better terms and services than Google’s own offerings.

In 2012, Google was a much smaller company than it is today. In the intervening years, it has cemented its position as the dominant actor in the digital advertising ecosystem while news organizations across the world are struggling to survive in the face of dwindling subscription and advertising revenues. Its exponential growth has also made it harder to regulate, with Google using its position and influence globally to fight any efforts to regulate its activities or to demand payments to news publishers for the use of their content. One only needs to look at the campaigns against the European Copyright Directive and the Australian media bargaining code for evidence of these strategies.

These global news compensation efforts are now trying to patch the damage caused by Google’s unregulated expansion and dominance over the last decade. In addition to Australia and Europe, Canada is reportedly considering adopting an Australia-style bargaining code while U.S. Congress is debating a safe harbor bill that would help level the playing field by allowing news publishers to collectively negotiate with the online platforms. At the same time, regulators in the United States and abroad have brought multiple antitrust suits against Google for anticompetitive conduct in search and advertising.

These legislative solutions and enforcement actions are not easy to develop or adopt, especially taking into account Google’s market power, and will not fix the problem completely, but they are the only way to protect a competitive digital marketplace and ensure a future for high-quality journalism. The online economy is at a critical juncture and it is vital we do not repeat the mistakes made by the FTC almost ten years ago.

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Earlier this year, the European Union adopted its new Copyright Directive that modernizes and harmonizes copyright laws across the EU. Article 15 of this Directive creates a “Publishers’ Right” that grants publishers in the EU an independent right to protect their content against unauthorized uses by online platforms. It was a major step toward recognizing the value of high-quality journalism and helping to ensure that news publishers are compensated for the use of their content by services such as news aggregators (which currently use – and benefit financially from using – news publishers’ original content without compensating the publisher).

However, in response to France’s recent implementation of the law, the first country to implement it, Google has indicated that it will remove all snippets (unless publishers agree to waive their right to compensation) from search results in France, arguing that doing so would allow it to avoid licensing content under the Copyright Directive.

This is not the first such law to be passed in Europe. Similar laws previously passed in Germany and Spain. While Germany’s law was found to be invalid due to procedural issues, Spain’s law – passed in 2014 – requires news aggregators such as Google to pay for a license to use news content. As a result, Google decided to shut down its Google News service in Spain at the end of 2014.

For years, critics have attempted to make the case for why the EU should not adopt a similar law, arguing that the Spanish law and resulting Google News closure were disastrous for Spanish news publishers, with some publishers experiencing double-digit drops in web traffic.

And for years, we’ve heard otherwise from our European colleagues.

To better understand the impact of the closure of Google News in Spain, we recently spoke with our European colleagues and reviewed publicly available website data. What we found was that much of the data contradict the narrative pushed by Google and other opponents of the Publishers’ Right. The data we reviewed do not indicate that publishers would be significantly harmed if Google ceased to operate Google News in a particular country.

Here is what we found:

In addition to talking with our colleagues at Spanish and European news industry organizations, we looked at other studies, as well as publicly available unique visitor data and other statistics from eight Spanish news publisher websites since 2014. The data we reviewed indicates that the closure of Google News in Spain in 2014, and the underlying Spanish law, were not detrimental to the Spanish news publishing industry as a whole. In fact, they indicate that those Spanish news publishers included in the analysis were minimally affected and that the reduction in traffic following the closing of Google News was, if anything, low and temporary.

Since the Google News Shutdown in Spain, Overall Traffic to News Sites Went Largely Unchanged

Over the long-term, data showing online website traffic trends for Spanish news sites from 2014 up to 2019 seem to have remained largely unchanged, with the total number of unique monthly visitors actually increasing with many publishers. For example, El País, one of the biggest newspapers in Spain, reported 8.5 million unique monthly visitors in October 2014 before the Google News shutdown, whereas in December 2015, that number had increased to 16.6 million.

In addition to the decrease in total traffic appearing to be relatively small, anecdotes from those close to the Spanish news publishing industry indicate that the publishers made up for any loss in referral traffic from Google with organic traffic growth.

Cutting Out the Middle-Man Benefits News Publishers Because Direct Traffic Is More Valuable Than Referral Traffic

A 2017 study looking at the effects of news aggregators on news consumption (based on Spanish data) also shows that Google News acts as a substitute to publisher landing pages, the traffic to which is generally assumed to be more valuable to publishers than click-throughs to individual articles. So, the closure of Google News may therefore actually increase more valuable traffic to news publisher sites.

Other data show that publishers in countries without Google News – such as Denmark and Finland – are doing comparatively well, even while struggling with similar challenges to news publishers in other countries.

Finally, the aggregators’ use of news content without compensation may hurt consumers as it does not help sustain, in the long-term, the kind of high-quality journalism they rely on. A survey by the European Commission found that 47 percent of Europeans who access news through news aggregators, online social media or search engines do not click on the links and access the original articles, thereby depriving news publishers of valuable traffic. Research we reviewed has also found that readers often do not see Google News as a major driver for their news consumption habit, therefore reducing the effect of its hypothetical closure in any given country.

While data on the impact of the Spanish law is limited, our findings suggest that the picture is not as clear-cut as critics say it is. The news publishing industry in Spain was not devastated by the adoption of the ancillary copyright law, and countries without Google News still support relatively healthy news industries.

You can find the full analysis of our findings, containing more statistics, examples and study findings here.

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The European Union took a massive leap forward in protecting news content on March 26, when the European Parliament voted to adopt the long-awaited Copyright Directive. The Directive includes a provision that grants European news publishers an independent right to protect their content online against unauthorized uses by online platforms. The Publishers’ Right marks a major positive development for news publishers and the sustainability of high-quality journalism in Europe for two main reasons.

First, European news publishers are currently unable to effectively protect their content online. Though other content industries, such as music and film studios, have certain rights that allow them to protect their works and negotiate deals with companies, news publishers in Europe have never enjoyed these rights. The new Copyright Directive grants news publishers similar rights to those enjoyed for years by other content producers.

Second, the Directive levels the playing field between news publishers and the online platforms, who regularly use – and sell advertising against – publishers’ news content without paying them. While “individual words” and “very short extracts” are still free for anyone to use, online platforms and news aggregators – such as Google News – can no longer simply rely on being able to exploit news publishers’ content, unless the publisher decides to waive its right to demand compensation. The Directive provides a market-based approach that forces tech companies to find mutually beneficial arrangements with news publishers, thereby protecting the financial future of news publishers in the EU.

And there lies the crux of the Publishers’ Right. The Directive is about more than adding to publishers’ bottom lines; it is about receiving equitable compensation for their work and making sure the online ecosystem works for all. Under this Directive, European communities will continue to receive high-quality reporting from news outlets they trust. Without it, the online platforms would continue to go unchecked and the future of quality journalism would remain uncertain.

The Directive is narrowly drafted to only affect those who aim to financially benefit from news content. In addition, all parties have rights under the Directive – publishers are not required to license their news or demand compensation for its use, and tech companies don’t have to publish certain content if they choose not to. Private and non-commercial users don’t need licensing agreements to share content, and hyperlinks remain free for all. The Directive simply protects against the most flagrant abuses of online content.

News publishers are at a crossroads: for news publishers to provide readers with the trustworthy and relevant information they expect, the online ecosystem must change to provide equitable compensation for those investing in quality journalism. The Copyright Directive is a massive step in the right direction. The Council of the European Union must still officially adopt it in April, and then, the member states will have two years to implement it nationally. But once it is implemented, news publishers in Europe will be better equipped to respond to the challenges facing them, hopefully serving as an example for the rest of the world.

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“Fair use” is one of the best-known copyright terms outside the legal community. Fair use is the ability to freely use another person’s content that would otherwise be copyright-protected. Most people may not know how to determine whether their use of someone’s work constitutes a fair use, but they know that copyrighted content can sometimes be used without getting a license (permission) to use the author’s work. After all, how else would we have parodies of well-known songs, YouTube reviews of games and movies, and quotes from news articles in books and academic articles?

Fair use is an integral part of the copyright system. Most producers of original content, including journalists, rely on it at some point in their careers to produce new creative works or to inform the public about current events. Whether it’s a review of the latest novel or an article about a recent report on global warming, journalism depends on the right to quote and refer back to other creative works. These are exactly the kind of uses the fair use doctrine, as established in the Copyright Act, aims to protect. However, as most good things, fair use comes with a flip side.

News publishers invest considerable resources to produce high-quality journalism that supports a healthy, informed society. The articles these publishers produce on a daily basis inform citizens and decision makers about issues of national importance. And they do this in an increasingly digital ecosystem largely dominated by a few big online platforms that results in decreased advertising and subscription revenues for the publishers. Ensuring sustainable revenues is vital for the preservation of high-quality journalism. The judicial expansion of the fair use doctrine beyond its reasonable bounds has largely decimated the copyright protections for news publishers, exacerbating the already dire situation many news publishers find themselves in.

Despite Congress’s best efforts, the Copyright Act does not provide a clear-cut standard for deciding what is fair use. Instead, the courts are required to evaluate and balance four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the market effect of the allegedly infringing use. So far, so good – judges have to balance similar factors every day. However, the Supreme Court’s decision in Campbell v. Acuff-Rose Music in 1994 led courts to increasingly analyze fair use using a so-called “transformative use” test, which has greatly expanded the scope of the fair use doctrine.

Utilizing the transformative use test, courts have found everything from Google Books to services that record and provide access to television and radio content for profit to be fair use. While some of these decisions have been reversed upon appeal, the expansion of the fair use doctrine has effectively rendered many of the copyright protections unavailable for news publishers.

Unfortunately, many of the services benefiting most from the expansion of the fair use doctrine are those already dominating the online ecosystem. Google, Facebook and others not only regulate which news articles and outlets are uplifted or featured in search results so that users can easily access them, and what content is acceptable on the platforms, but they do so while using news content for free to generate even more revenue and entice users to stay on their platforms. In effect, the dominant online platforms are making money off the backs of newspapers, while also deciding how these publishers can engage with the readers.

Meanwhile, publishers are left without recourse, and finding a solution to this systemic problem is becoming increasingly important. News deserts in the United States are spreading at an unprecedented rate, and while the online audience for newspapers has increased rapidly, too many news publishers have had to cut costs because of revenue lost to the digital giants, jeopardizing the sustainability of high-quality journalism in the United States. In order to preserve a vibrant and inclusive news media, news content needs to enjoy the full protection of our copyright laws, both online and offline. Across the pond, the European Union is about to adopt a Publishers’ Right that will grant news publishers an effective and enforceable right to protect their content online against the online platforms. In the U.S., the over-extension of fair use still stands as a challenge. While some recent court decisions have started to recognize the need to rein in the fair use doctrine, there’s still a long way to go.

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“Congress shall make no law … abridging the freedom of speech, or of the press.” For centuries, these words have protected the right of every American to express themselves and allowed the free press to flourish. At a time when these ideals are being tested and questioned – perhaps more than ever before – it is important that we reflect on where we are and where we are going in the face of the vast technological changes that are impacting our press and our democratic systems, especially the rise of the big tech platforms and their role in making editorial decisions previously delegated to newspaper publishers.

Newspapers perform a vital role in our society – delivering information to local communities and keeping the public abreast of developments of national and international importance. For centuries, they have been the main moderators of public expression. Although the First Amendment protects the free speech of individuals and the press against undue government regulation, it is not unfettered. Newspapers that print defamatory or harmful speech can still be held liable under state law. In many ways, the internet has had a great equalizing effect on free speech, allowing anyone with an internet connection access to publishing platforms. Government policies incentivize digital companies to allow free speech on their platforms without significant content moderation; however, problems start to arise when these companies move away from acting as neutral content platforms and start making unaccountable editorial decisions.

Today, big tech companies like Google and Facebook have effectively become digital publishers, deciding what content people see and when. These decisions are made by opaque algorithms that do a lackluster job separating quality content from misinformation and fake news. The result is the proliferation of false information across the web. In addition, the online platforms regularly censor offensive or criminal content. These decisions by the tech companies often lack transparency and can be a combination of automatic content-filtering and human evaluation.

No one can argue with social media companies removing hate speech and offensive content – think Alex Jones’s alt-right propaganda – but in making these decisions, the platforms should admit that they are not merely neutral information exchanges, but rather active editors.

It isn’t just outside observers who have noted that the tech platforms resemble traditional publishers – the tech companies themselves have admitted as much in court proceedings. In the case Six4Three v. Facebook, where an app developer sued Facebook for its refusal to grant access to user data, Facebook referred to its decision to limit data access as a “quintessential publishing function.” Facebook also made the argument that this publishing function includes deciding what to publish and what not to publish. Yet, Facebook has consistently refused to describe itself as a publisher in public statements. This exhibits the unashamed tendency of the big tech companies to claim the benefits that come with being a publisher when it suits them, while refusing to accept any of the societal responsibility that comes with it.

One reason for this may be that the very law that was designed to foster their growth two decades ago – Section 230 of the Communications Decency Act – also grants them broad immunities from liability for the user content they publish. In fact, Section 230 specifically states that online services shall not be treated as the “publishers” of any information provided by another party. The law allows online platforms to “restrict access to or availability of” offensive and “otherwise objectionable” material without fear of civil liability. Online platforms can therefore publish whatever user or third-party content they wish – while deciding what not to publish – without any repercussions.

Instead of trusted, accountable publishers determining what constitutes real news, web and social media companies that have no regulatory oversight now make those decisions for us. These actions by big tech companies affect citizens’ fundamental rights and civil dialogue well beyond the confines of the online platforms, with little to no option for citizens to protect their right to free speech.

While we must continue to celebrate the rights and privileges granted to us by the First Amendment, we must also protect those rights for the generations to come and develop new rules for the digital era.

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According to the Pew Research Center, approximately two-thirds of Americans got at least some of their news on social media in 2017, with minorities, seniors and the less-educated relying on social media to access news more than the average. These numbers increased substantially from 2016, representing Americans’ increased reliance on social media platforms and their role in deciding what information we see and when. Reduced visibility for high-quality news on Facebook arguably affects minorities, seniors and the less-educated more than anyone else, thereby increasing demographic disparities and the information gap.

It is then both surprising and heartening to notice that when Facebook’s site goes down, its users revert to news publishers’ websites.

This was evident the morning of August 3, when Facebook users all over the world were greeted with a blank page, and for 45 minutes Facebook was down, apparently due to technical reasons. During this downtime, U.S. news publishers witnessed a 2.3 percent spike in their overall website traffic, according to new data from Chartbeat – a content intelligence company that analyzed data from more than 4,000 publishers worldwide, including local publishers. Not only does the data show a moderate spike in overall web traffic, but also an 11 percent increase in direct traffic to publisher content (largely driven by a noticeable increase in app traffic) and an 8 percent increase in search traffic. Direct traffic is the number of people who access a website by typing the web address directly into their browser, while search traffic is the proportion of people reaching the website through a search engine.

These numbers arguably demonstrate the need for high-quality news even in the era of social media, and also reflect larger changes in the online news ecosystem. According to Chartbeat’s data, mobile traffic originating from Facebook has declined by nearly 40 percent since January 2017, while Google search and direct mobile traffic have witnessed considerable increases. Consequently, on mobile devices, social media is no longer the dominant way for visitors to reach news content.

For news publishers, the Chartbeat findings come as welcome news. While efforts to work with Facebook to increase news traffic are important and the treatment of high-quality news by social media companies remains a major issue, readers seem to crave real news, whether it is easily accessible on social media or not. On mobile devices, efforts to develop apps and readability seem to be bearing fruit, with the social media applications losing ground (or remaining stable) as the gateways to news content. Challenges remain, but there is light at the end of the tunnel.

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Following year-long negotiations on revisions to the North American Free Trade Agreement (NAFTA), the United States and Mexico announced on Monday, August 27, that the two countries had finally reached a preliminary agreement to replace NAFTA. The negotiated text has not yet been made public, as the United States is still engaging with Canada in an effort to secure Canada’s involvement in the revised agreement. However, the short fact sheet, released by the Office of the United States Trade Representative (USTR), raises some serious concerns for newspapers, while also including positive news for news organizations with regards to fair use.

Starting with the good news, the preliminary agreement does not seem to export U.S.-style “fair use” provisions internationally. These provisions, included in the Copyright Act, allow creators to use copyrighted content without authorization and remuneration if it is considered fair use. While content creators often rely on fair use to create new works, courts have extended the exception’s scope beyond its natural bounds, undermining copyright protection for news content. Excluding fair use provisions from the negotiated agreement is a positive sign, as any treaty text would arguably not accurately reflect the limited scope and nuances of the original exception. Due to the judicial expansion of the exception, newspapers are effectively unable to assert copyright protection against the more harmful and pervasive violations of their rights, and therefore any expansion of the current fair use doctrine at an international level would be further detrimental to the industry.

However, that’s it for the good news. Buried at the bottom of the USTR fact sheet’s Digital Trade subheading is a line indicating that, following extensive lobbying campaigns by the big tech companies, the negotiators seem have inserted a provision granting online service providers broad immunities from civil liability at a time in the U.S. when the lack of responsibility of the platforms remains a challenge to ensuring consumer welfare and quality of content.

In the United States, Section 230 of the Communications Decency Act of 1996 effectively provided immunity from civil and some criminal liability (with some exemptions, including intellectual property law) to all interactive online platforms that publish third-party content – including from claims of defamation, invasion of privacy, and misappropriation.

While some claim that Section 230 has enabled the United States to develop the most vibrant tech sector in the world, the companies that benefit from it today are not small start-ups, but rather large multinational companies such as Google and Facebook. And as recent events have shown, the content these online platforms publish can have grave consequences for our democratic institutions, consumer privacy and the public’s trust in the media. As a result, politicians both in the United States and globally are revisiting this broad immunity for the tech platforms and are considering increasing their responsibility for the content they publish.

While the exact language of the provision in the preliminary agreement is unclear, enshrining Section 230 in NAFTA would enshrine this immunity in United States and globally. The revised NAFTA, if approved by Congress, would also serve as the template for any future trade agreements the United States negotiates with partner countries. As recently as July, the Culture Committee of the UK Parliament released an interim report recommending increased platform liability. Similarly, France and Germany have recently adopted laws tackling fake news. These developments go directly against the attempts to include stronger protections for online platforms in free trade agreements.

Meanwhile, in the United States, Section 230 was last amended just this year to explicitly exempt state and federal sex trafficking laws from its scope. Now that Congress is examining ways to protect our elections, enhance data privacy and prevent the spread of misinformation, including Section 230 in NAFTA would arguably make further changes to Section 230 domestically more sensitive.

Section 230 language has never before been included in a free trade agreement and now is not the time to start doing so. Including such language in NAFTA would protect the status quo globally, solidifying the status of online platforms, while making changes that protect our institutions, citizens, and news publishers more difficult to achieve. The News Media Alliance will therefore continue to advocate for the exclusion of such language from the final agreement in an effort to protect high-quality news content. The next few weeks are critical in this process. While Canada has not yet signed on to the negotiated deal, on Friday, August 31, the Trump Administration informed Congress of its intent to sign the re-negotiated NAFTA agreement with Mexico – and potentially, Canada – at the end of November. The Administration will have to publish the final agreement text within 30 days of the notice to Congress, giving the negotiators just a few weeks to negotiate with Canada and make tweaks to the agreement to ensure Canada’s involvement in the deal.

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