Reasonable regulation is democratic, but the moral panic around big tech is muddying the waters
Australia’s new News Media and Digital Platforms Mandatory Bargaining Code will force platforms like Facebook and Google to pay local media outlets and publishers to link their content in news feeds or search results. While both the tech giants initially took a hard stance against the law with Google threatening to exit Australia and Facebook banning news from its feed in the country, they ultimately struck deals with publishers. The Australian law is being seen as one of the early shots fired in the coming battle by countries to regulate tech giants to take back some of the control they have on global communications. But is it an ideal regulatory model? Won’t regulating the platforms affect free speech? Is regulating platforms the way to save the news media business that is in the doldrums? Jeff Jarvis, Director, Tow-Knight Center for Entrepreneurial Journalism at City University of New York’s Craig Newmark Graduate School of Journalism, and Dwayne Winseck, Professor, School of Journalism and Communication, Carleton University, Canada, tackle these questions in a discussion moderated by P.J. George. Edited excerpts:
When Facebook decided to block Australians from posting or accessing news on its platform, it said that the coming Australian law fundamentally misunderstood the relationship between it and the publishers, and that it was more of an enabler for news, rather than an adversary. Is Facebook overplaying its benefits to news media?
Jeff Jarvis: The platforms are right when they say they bring value to the publishers. They send the publishers readers, and it’s up to the publishers to build a valuable relationship of trust over time. The links to the publishers have not been given a market value now. Google, in its earliest days, decided not to charge for position in search. Thus it never created a market value for them. But it’s unquestionable that Google and Facebook send tremendous value to the publishers. Now the question on the other side of the equation is whether news is valuable to the platforms. Barely. News is a very small part of search. On Facebook, less than 4% of the traffic goes to news. Now both platforms have started new features such as the showcase on Google, the news tab on Facebook, for which they are willing to license full content. But this is not really buying news. It is a pay-off, to try to get these publishers to stop cashing in their political capital to buy protectionist legislation from their governments. This is bad for the web, bad for the Internet, and bad for news.
Australian Prime Minister Scott Morrison had this to say about the tech companies: “They may be changing the world, but that doesn’t mean they should run it.” However, there has also been criticism that the driving force behind the new code is media mogul Rupert Murdoch. Is the code a legitimate attempt to regulate tech platforms vis-à-vis news, or is it just a way of diverting some cash to media companies?
Jeff Jarvis: The Australian law is Rupert Murdoch’s blackmail of technology. This is a link tax — that those who link must pay a fee. Sir Tim Berners-Lee, the creator of the web, has testified to Australian legislators that this breaks the web. But Mr. Murdoch wins either way here. He owns 70% of the print news market in Australia. Who gets hurt most is anybody who wants to bubble up from the land of start-ups and create competition.
There are ways to have a discussion about regulation against certain outcomes. But in this case, even if you have decided that you should tax the platforms more, why should that money go to entitled publishers? Why not to education or healthcare or Internet access for the poor? There are a lot of other places I can see it going than Mr. Murdoch in Australia or the hedge funds that control the largest media company in Canada and also in the U.S.
Dwayne Winseck: There’s absolutely no doubt that the digital platform inquiries that led to this news bargaining code came out of an unholy alliance between the current government and the major media groups in 2017, with Mr. Murdoch’s News Corp and Sky at the front. To get Mr. Murdoch’s and [Chairman of Seven Network] Kerry Stokes’s blessing for a new law on media ownership, the government then made two commitments: to hold a public inquiry into the platforms, and another into public service broadcasters like the Australian Broadcasting Corporation. The backing of the major media moguls badly tarnishes the effort and shows the extent to which the local media companies have been able to set the policy agenda in the country.
However, we can also see that the Australian process is one of many taking place around the world in the last three to five years, including in India. There have been at least 90 such public inquiries into what should be done about the growing clout of platforms. What this tells us is that the days of voluntary self-regulatory efforts from the large platforms are over. Instead, countries want mandated regulatory requirements.
The Australian case tries to deal with two realities. The first is that they have a highly concentrated Internet with Google, for example, accounting for 95% of search queries. Google and Facebook together take 61% of the country’s online advertising. (In Canada it’s 80%; in the U.S., two thirds.) In terms of the time people spend online in Australia, the U.S. and Canada, about two-fifths is spent on Google and Facebook-related sites. The proposed code would require Facebook and Google to open up their algorithmic black boxes, and their datasets that underpin the advertising market, to regulatory scrutiny. It would also enable the Australian Competition and Consumer Commission to compel Google and Facebook to carry certain news services for a yet-to-be specified fee.
Jeff Jarvis: Requiring that the platforms not only have to pay for media content but also have to compulsorily carry such content bothers me, since compelled speech is not free speech.
Dwayne Winseck: You cannot call must-carry laws as compelled speech. Making platforms common carriers is not a good idea but we need to move towards something like fair carriage — like what the Australians are doing by saying certain public interest-oriented journalism must be carried. These ideas are not antithetical to democratic societies. The public sphere requires that a certain range of voices, issues, and values be present. The way to set the terms around what is to be present is through political debate within the context of a democracy and the rule of law, as opposed to basically abdicating those decisions to the platform’s voluntary efforts and philanthropy.
Jeff Jarvis: If you have that kind of regime, then Donald Trump would have had the authority to require Twitter and Facebook to carry him and his incitement. In the U.S., at least, the First Amendment will protect us from that because Twitter and Facebook have free speech rights. If the platforms are required by such a precedent to carry official speech, they can also carry hatred, incitement and all kinds of bad things that Facebook gets accused of having carried in Myanmar.
Dwayne Winseck: We have to make a distinction between good democratic governments and bad authoritarian incline.
Jeff Jarvis: That’s hard to do.
Dwayne Winseck: I’m quite happy with the kind of European-Canadian international human rights standards for freedom of expression and opinion which is basically that we all have these rights, subject to limits established through the rule of law and which are compatible with a democratic society and overseen by an independent judiciary. The rest of the world need not be held hostage to the American constitutional set-up for freedom of expression.
Mr. Morrison has already spoken to Prime Minister Narendra Modi and Canadian Prime Minister Justin Trudeau and these countries, along with the European Union, are being seen as next in line to come up with regulation for tech. What’s the long game here, and what are the dos and don’ts that these countries can pick up from the Australian episode?
Jeff Jarvis: My fear is that we are seeing in media and politics a moral panic in which old institutions are trying to find a Boogeyman on whom to blame all of society’s problems. That moral panic then gives them licence to do things that in an otherwise sane world wouldn’t occur.
We’re going to hurt ourselves in how we treat the Internet and speech on it. It’s important to point out that it’s only because of social media that we have #BlackLivesMatter, #LivingWhileBlack and #MeToo; that the voices too long not heard in the mainstream media run by people who look like me, old white men, are now finally being heard. Part of the problem is that the old voices resent the presence of those voices at the table. So, when we have governments joining together to fight the Internet — when it’s Mr. Morrison talking to Mr. Modi and Mr. Trudeau, when it’s [German Chancellor Angela] Merkel and [French President Emmanuel] Macron complaining about the fact that Twitter took Mr. Trump down — we see old institutions, old governments that are challenged by the Internet taking advantage of the moral panic and trying to stop a wind that I don’t think can be stopped. I get very nervous when governments gang up to try to control what is fundamentally a platform for speech.
Dwayne Winseck: It doesn’t help to talk generically about the Internet. It’s about this idea that the Internet itself has been hijacked by a small group of companies that are rewiring it. They are substituting their own proprietary technical standards, interfaces and codes for the earlier generation of shared and open technical protocols that defined the open Internet. They control audience data, which is the currency upon which this walled-garden version of the Internet works. They also control advertising, which is the money underpinning the so-called free Internet. This rewiring of the Internet was one to bring about the online advertising system with hyper-targeted ads. But it’s been hijacked for disinformation operations, and to fan the flames of political polarisation, hate speech, misogynistic abuse, terrorist propaganda — all the stuff that give rise to the moral panic. I, too, am very uneasy about private corporate actors having the power to de-platform the most powerful politician, the U.S. President. But Mr. Trump is an index of a bigger problem, that something is fundamentally wrong with a conception of freedom of speech that does not draw boundaries around assaults on democracy. There must be a means — an institutional arrangement — by which those assaults can be brought to heel. Critically, the mechanism cannot be left at the mercy of a handful of private corporations.
Regarding what needs to be learnt from the Australian law, it does get at the problem of who controls the data upon which online advertising system is based. But instead of trying to rein in this kind of surveillance capital model of data harvesting, it basically gives it the government’s blessing and tries to bring in the Australian media companies into a better spot at the table and give them a bigger share of the pie. So, when Canada, the U.S., and India look at Australia, my hope is they can cherry-pick the good bits.
One of the most downloaded apps in Australia now is the Australian Broadcasting Corporation’s news app. This is being touted as an example of how newspapers exploit the opportunity to end their dependence on news aggregators and social media. However, not all news outlets may have the resources to do this. Where do the smaller media players, and journalism itself, stand in this tussle?
Jeff Jarvis: What my fear about this kind of legislation is that it delays the inevitability of media companies learning what they have to learn about this world. It’s great that the ABC is getting an audience. But that also relies on the old model of media: that media were the destinations; that you had to come to us. We’ve got to learn the lesson that social media taught us: we’ve got to go elsewhere. Facebook was not built for news; our readers took news there because they wanted a place to discuss it. Twitter was not built for news. Witnesses chose to share what they saw there because news media did not do that. The news industry didn’t create an ecosystem-wide view of news; Google News did that.
What needs to happen here is that we’ve got to reinvent our fundamental model. What happened in the early days of the Internet is that the platforms took mass media’s own attention-based advertising business model and did a better job of it. However, advertising as an attention-based model is inefficient and insulting and bothersome and ridiculous. I object to the coinage ‘surveillance capitalism’. It offensively dilutes the power governments hold to truly survey people. When we see what’s going on in Russia right now, getting a cookie on your browser to say that you like boots because we looked at a boot ad is not surveillance. Attention-based advertisement is not surveillance, but it’s a pain and needs to be reinvented. Media properties have to understand that they are not in the business of making a product called content and then selling our audience to advertisers. That’s what we did for a century and that’s what the platforms are doing now. Journalism is a service. It has to fundamentally rethink its role in the public conversation. I work under a new definition of journalism and a new mission, which is to convene communities into respectful, informed and productive conversation. We all have to imagine a different future to support a quality public conversation.
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Dwayne Winseck: We have to realise that journalism has always been a public good in an economic sense. Historically, the general public has never, ever paid the full freight of a general journalistic or news service. It has always had to be subsidised, either by wealthy patrons, or by governments in democratic societies through the public service media system — like the CBC here in Canada, the BBC in the U.K. — or by advertising. Now that the advertising subsidy is falling away from journalism, we have to recognise that advertising was never a virtuous means of subsidising the general availability of news. Can we come up with some form of public subsidies? This is extremely difficult, but it’s been done for half a century in some European countries. I would recommend that we do that.