New Legislation Raises Fears of Big Tech–Media Collusion Against Independent Outlets

Sen. Amy Klobuchar (D-Minn.) speaks during a hearing in Washington on June 15, 2021. Anna Moneymaker/Getty Images

A Senate bill is raising fears among some for its potential to enable Big Tech and mainstream media outlets to collude against smaller and independent media outlets.

The legislation, dubbed the Journalism Competition and Protection Act (JCPA), would supersede some existing antitrust laws and allow media companies to band together to negotiate with Big Tech platforms, such as Facebook, Google, and Twitter.

Specifically, the JCPA states: “A news content creator may not be held liable under the antitrust laws for engaging in negotiations with any other news content creator during the 4-year period beginning on the date of enactment of this Act to collectively withhold content from, or negotiate with, an online content distributor regarding the terms on which the news content of the news content creator may be distributed by the online content distributor.”

This means that online and print media outlets, including some of the largest and longest-established names in the industry, could band together in a kind of media union to demand concessions from tech companies in order for the coalition to continue to allow their content on the platform. Under existing antitrust laws, such cartels—which describe a collusion of firms in an industry that have joined together for a common financial or industry outcome—are decidedly illegal.

Proponents of the JCPA have presented it as a much-needed panacea to address the dwindling number of dedicated local media companies that, proponents say, are often left behind in the umbrella of Big Tech algorithms and advertising capacity.

In a Change.org petition that has garnered more than 23,000 signatures, the News Media Alliance, one of the most outspoken supporters of the legislation, explained this position, presenting it as a hardline position against the reach of Big Tech power and influence.

“Today, many local newspapers are struggling to stay in business,” the petition reads. “Big Tech platforms, such as Facebook and Google, control how we access trustworthy news online and how journalism is displayed, prioritized, and monetized. They capture the vast majority of all digital advertising dollars because of their outsized ability to collect consumer data.

“Local newspaper revenues have gone down and as a result, thousands of journalists have been laid off, ‘news deserts’ are emerging across the country, and dangerous misinformation that threatens the fabric of our democracy continues to flourish.”

‘Misinformation’ and ‘Extremism’

But opponents of the measure have raised alarm bells, saying that, in practice, the policy will only serve to benefit established legacy and mainstream media outlets, to the exclusion of anti-establishment, independent publications.

Specifically, opponents point to a section of an updated draft of the JCPA that could effectively permit legacy media cartels to demand that tech platforms censor or outright refuse to permit newer, less-established media outlets from publishing on the platform.

Under the text of the legislation, media cartels’ negotiations with tech platforms must go beyond mere monetary concessions.

In practice, critics fear that this could allow legacy media outlets to demand that smaller outlets peddling so-called misinformation or fake news—which many on the right see as a thinly-veiled catch-all term intended to denounce and delegitimize conservative media outlets—be barred from publishing content on tech platforms.

Technically, the legislation ensures that this won’t happen.

Under the terms of the measure, coalitions of media outlets banding together to collectively bargain can’t exclude outlets from the cartel on grounds “[related] to the size of an eligible digital journalism provider or the views expressed by its content.” In other words, the cartels can’t exclude members from the negotiating table because they’re considered too small or because their expressed beliefs go outside of the political mainstream.

But critics say that the grounds that are permissible to exclude an outlet—including an outlet’s “trustworthiness,” “extremism,” “misinformation,” “hate speech,” “conspiracy,” “expertise,” “authoritativeness,” and others—could allow media cartels to bar newer or anti-establishment media outlets from negotiations, given the relatively subjective nature of such criteria.

Republican Criticism

Among the critics of the legislation is House Minority Leader Kevin McCarthy (R-Calif.), who has encouraged Republicans to oppose the measure and called it “the antithesis of conservatism.”

“Attempts by big media and Democrats in Congress to collude and monopolize economic models poses a tremendous threat to free speech and a free press,” McCarthy told Breitbart News.

“Never before has the opportunity been as open for startup news outlets as it is today. Americans now have more choices to get information and make decisions for their communities and elected leaders. That makes Democracy stronger and creates a whole new class of entrepreneurs that will also drive job growth. As we have seen in other industries, disrupters make legacy players uneasy and those legacy players are often willing to do whatever it takes to hold onto their market share and power.

“This is the antithesis of conservatism, and House conservatives will fight for an open and free market—especially one that advances free speech and a free press.”

The legislation, which was first put forward by Democrats in both chambers in the spring of 2021, is set for markup in the Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights on Sept. 7.

Sen. Amy Klobuchar (D-Minn.), who chairs the subcommittee, has expressed her support for the legislation in the past, and it seems likely that Democrats will support it, advancing it to a possible floor vote in the Senate. It’s unclear whether the measure, if advanced, will be able to garner enough Republican support to overcome the 60-vote filibuster threshold.