Big Tech and Journalism: Principles for Fair Compensation

“One remedy we do not have in the Global South is the break-up of Big Tech through antitrust or competition authority action,” Michael Markovitz, of the Gordon Institute of Business Science (GIBS) in South Africa, said in an opening speech at a conference in Johannesburg last week. Below is an edited version of his keynote.

We have brought together journalists, news publishers, media organizations, academics, activists, lawyers and economists from 24 countries, all with the common goal of finding solutions to the crisis facing the long-term sustainability of journalism and how this intersects with the conduct of Big Tech platforms.

It is self-evident from the attendance here that this crisis is a global one, spanning continents and hemispheres, impacting a range of media organizations, from public to privately-owned, from legacy print organizations to independent digital-only news media, from local to national media and from commercial to non-profits. We are meeting in Johannesburg to discuss this crisis in recognition that the challenge of sustaining journalism, in particular public interest journalism, is far more acute across the Global South.

This is not just a crisis that impacts journalism as an isolated practice or profession. Research by several participants here today has identified that there is a symbiotic relationship, a co-dependency between the sustainability of journalism as a public good and the democratic health of a country. A crisis for the long-term sustainability of independent and public interest journalism is therefore also an impending crisis for democracy.

Our focus on the intersection between policy on platforms and policy on sustaining journalism is not to say this is the only issue impacting media viability in the Global South. There are many other issues that need to be urgently addressed, most of all pervasive digital authoritarianism and repressive laws curbing media and internet freedom across the world.

On financial sustainability, one is not only looking to Big Tech. It is acknowledged that several other interventions are necessary involving coordination by donors, new forms of training, non-discriminatory government advertising and more innovative business models.

However we need to drill down into the economic relationship between Big Tech and journalism because to be independent, to be an essential service and a public good, journalism first has to survive.

This was lucidly set out by UNESCO last year:

“For journalism to fulfill its mission as a public good and essential service, media must be not only independent, but also economically viable. If the viability of media is under constant threat, journalism as distinctive communication in the public interest cannot be sustainable. Media viability gives journalism the institutional strength and autonomy to perform its role as a public good”.

Today we are focussing on a very new policy area – a new genre of regulation – with examples that remain in single digits and a history of less than a decade.

Taylor Owen described this new challenge on a recent podcast, when discussing the Canadian Online News Act:

“Being late to the game means we can learn from mistakes and successes from other jurisdictions. It is a unique policy domain that has never been tried before….Everybody sees similar problems, but everyone is going to have slightly different solutions based on their own democratic systems, jurisprudence, economies etc…This actually creates the perfect petri dish for policy experimentation…”

We know that none of the existing bargaining codes and copyright laws are without fault and can be improved and therefore need to acknowledge that there are strident critiques of bargaining codes from a spectrum of ideological perspectives. However some of these positions are wedded to U.S.-focused privacy laws and antitrust solutions.

One remedy we do not have in the Global South – and to be fair no one has outside Washington D.C. or Brussels – is the break-up of Big Tech through antitrust or competition authority action. We can only focus on remedies that are within the jurisdictional scope of our national governments and regulators.

Principles for Fair Compensation Between Big Tech and Journalism

This conference’s two main aims are, firstly to share information about our different media systems and challenges and secondly to develop a collective, principled view on fair compensation between Big Tech and journalism as a guide to any legislative or regulatory interventions across countries and continents. We would also like these principles to align with existing and developing global frameworks on the same issue.  

I want to highlight two of these proposed principles: independence and transparency.

It is vitally important that any mechanism, whether through bargaining codes, government subsidies, copyright and tax incentives, does not compromise the independence of the news publishers or journalists being funded. This understanding is core to the definition of journalism as a public good that it remains independent journalism and an essential service in the public interest. There are concerns that media entities that are not independent in the first place, that don’t subject themselves to industry self-regulation and are known purveyors of misinformation, would still qualify to benefit  from some codes as currently conceived. A South African civil society alliance made representations to the Competition Commission’s market inquiry on Media and Digital Platforms that:

“public interest media that have committed themselves to the self-regulatory system that holds publishers to high standards of quality and accuracy must be the primary beneficiaries of competition regulation”.

Transparency is important on several levels. Firstly there are global calls for the platforms to qualitatively improve data sharing with international bodies, academics, researchers, public interest groups and others researching areas including content moderation, disinformation, online harms, human rights and safety of journalists. There has been some movement by the platforms and some multi-stakeholder engagement on this, mostly in Europe it seems. But the view from those closer to these engagements is that these moves are not yet nearly enough.

Secondly there is the demand for transparency of the deals news publishers make with the platforms. There is still strong debate about whether these agreements should be open for scrutiny.

Thirdly, and very importantly, there is an increasingly urgent need for platforms to share data for the long-term sustainability of media and journalism in the public interest. This is not to say that there is currently no data being shared by the platforms, but it is common cause that the platforms do not share all the relevant and requested data on news content with those who produce and own the news content.

Without meaningful and mandated access by news media publishers to more granular data about their news content, including prior notice of relevant algorithmic changes, more data on retention and engagement rates, how content is ranked, algorithmically amplified, monetised and how ad tech revenue shares are determined, it means news publishers will continue to fly blind, even when deals are negotiated with the platforms. Under-sharing of data also lessens publishers’ ability to shape their offering in the most impactful way. It is also important for publishers to first know what data they want before making specific requests in this regard. In my view, specified, defined data sharing should be included as a contractual requirement in agreements with the platforms. Sharing the required data would be a good confidence building mechanism in resetting the relationship and enabling good faith negotiations between news publishers and platforms.

Value and Revenue Gap

Speaking of negotiations, this conference will also discuss methodologies on how to address the value and revenue gap between news publishers and platforms. We look forward to hearing more about interesting research conducted on behalf of Swiss publishers on how to value the revenue shortfall.

Google has concluded many private agreements with publishers around the world, and is currently in discussions with larger publishers, including proposals to set up specific country funds, in South Africa as well. Given the financial crisis facing journalism, understandably many publishers cannot wait for regulatory and legislative outcomes that can take years to reach fruition.

Research released by Charis Papaevangelou, a postdoctoral researcher at the Institute for Information Law at the University of Amsterdam in collaboration with McGill University’s Centre for Media, Technology and Democracy, analyzed Google and Meta’s philanthropic grants across the world. His findings indicated a possible correlation between these grants and countries with the greatest likelihood of bargaining code-style regulation. He found that the U.S. had more beneficiaries than any other country, with Brazil and Canada in second and third positions. For me, these philanthropic grants should just be filed under “the right thing to do” for two global companies that control most of the world’s digital ad revenues and have historically extracted huge value out of public interest journalism and other news content. Let us not praise a fish for swimming. My view is that mandatory compensation for journalism on the one hand, and grants and private publisher agreements on the other hand are not mutually exclusive.

Regulation by Public Apology

When analyzing Big Tech’s attitude to regulation, Zeynep Tufecki dubbed it perfectly as “regulation by public apology”, with Big Tech’s CEOs appearing before legislatures in the U.S., Canada, U.K. and Europe and apologizing for various consequential and harmful outcomes flowing from their platforms: To paraphrase “We are really sorry, we promise to do better and we welcome regulation”. But the unspoken caveat is – “we welcome regulation if it does not impact the way we operate in any material way”. We are already seeing echoes of regulation by public apology when it comes to CEOs of generative AI companies giving evidence in the U.S. Congress and elsewhere.

Last month some of the world’s biggest news brands in the Digital Content Next trade association expressed a determination to not to be late in the game again and have warned that generative AI content could violate copyright law. Large digital publishers want to get ahead of the curve this time to protect their considerable archives of copyrighted material from being used to train Large Language Models (LLMs) and then used to generate revenue for AI companies without compensation or referencing back to publishers. In South Africa, civil society groups have welcomed the Competition Commission’s decision “to include the use of generative artificial intelligence (AI) and other new technologies in the scope of the Media and Digital Platforms market inquiry”. This is a positive approach by the Commission.

Lastly, Google and Facebook’s reaction to the Canadian Online News Act should not escape scrutiny. It appears that when democratic governments, legislatures and regulators cannot be stopped by traditional lobbying means, the Google and Facebook playbook so far is to threaten to cut off news distribution on their platforms, as they have threatened in Canada and as Facebook tried and relented in Australia.

Some argue that these are commercially driven businesses that have the right to decide on their commercial relationships. But this ignores the obvious fact that these companies are not ordinary businesses. They include some of the biggest companies in human history. Many believe that their threatened exclusionary conduct could amount to an abuse of market power across search, social media and Adtech, with the effect of also undermining democracies. It is not a good look. Make no mistake, the threat to block and remove Canadian news publishers is also meant as a thinly veiled warning to Brazil, Indonesia, the U.K. and South Africa who are weighing similar policy options. The warning is very simple: – don’t try this at home.

I believe however that we must continue trying this at home and keep exploring workable solutions in all our countries. The future of journalism, public interest media and democracy is at stake. What could be more important?

Michael Markovitz is head of the Media Leadership Think Tank at the Gordon Institute of Business Science (GIBS) in South Africa. Big Tech and Journalism: Principles for Fair Compensation will be launched on 24 July 2023.