H. R. 5190
IN THE HOUSE OF REPRESENTATIVES
March 7, 2018
Mr. Cicilline introduced the following bill; which was referred to the Committee on the Judiciary
To provide a temporary safe harbor for the publishers of online content to collectively negotiate with dominant online platforms regarding the terms on which their content may be distributed.
This Act may be cited as the
Journalism Competition and Preservation Act of 2018.
Congress finds the following:
A free and vibrant press is essential to the health of our democracy.
Fair and competitive markets are integral to maintaining a thriving press that can meet the demands of consumers and an informed citizenry.
More and more Americans prefer to read news online. While some readers may go directly to a publisher’s website, many more find news through the use of one or more online platforms, such as search engines and social media websites.
Over the past decade, digital audiences for news publications have increased by over 200 percent. Nevertheless, over that same time period, digital news publishers’ revenues have fallen by nearly half.
In the absence of the robust enforcement of the antitrust laws to ensure a free and open marketplace of ideas, some dominant platforms serve as a de facto gateway to all online content for many web users, wielding an enormous amount of control over how readers find and interact with content produced by the press.
Dominant platforms often are able to dictate the terms on which a publisher’s content may appear on their platform, and some hold so much sway in the online ecosystem that they can control whether their users are able to find a creator’s content at all.
An entity with the power to dictate the terms of distribution of news has the power to dictate the content of the news.
America benefits from, and depends upon, not only a free marketplace for goods and services, but also a free marketplace of ideas.
The antitrust laws were intended to and do provide both economic and civic benefits.
A central purpose of the antitrust laws is to promote and protect open markets, including those for the free and diverse press.
While antitrust exemptions are generally disfavored, should the application of the antitrust laws ever be applied in a manner that conflicts with their stated purpose—such as protecting the free and open marketplace of ideas online—it is the duty and prerogative of the Congress to resolve the conflict.
Safe harbor for certain collective negotiations
For purposes of this section:
news content creator means—
any print or digital news organization that—
has a dedicated professional editorial staff that creates and distributes original news and related content concerning local, national, or international matters of public interest on at least a weekly basis; and
is commercially marketed through subscriptions, advertising, or sponsorship; and
provides original news and related content, with the editorial content consisting of not less than 25 percent current news and related content.
Online Content Distributor means any entity that—
operates a website or other online service that displays, distributes, or directs users to news articles, works of journalism, or other content on the internet that is generated by third-party news content creators; and
has not fewer than 1,000,000,000 monthly active users, in the aggregate, of all of its websites or online services worldwide.
antitrust laws has the meaning given such term in subsection (a) of the first section of the Clayton Act (15 U.S.C. 12), and includes—
section 5 of the Federal Trade Commission Act (15 U.S.C. 45) to the extent that such section applies to unfair methods of competition; and
any State law, rule, or regulation that prohibits or penalizes the conduct described in, or is otherwise inconsistent with, subsection (b) of this section.
negotiation period means the period of time beginning on the date this Act goes into effect and ending 48 months later.
Limitation of liability
A news content creator shall not be held liable under the antitrust laws for engaging in negotiations with other news content creators during the negotiation period to collectively withhold content from, or negotiate with, an Online Content Distributor regarding the terms on which the news content creators’ news content may be distributed by the Online Content Distributor, if—
the negotiations with the Online Content Distributor—
are not limited to price and are nondiscriminatory as to similarly situated news content creators, and directly relate to the quality, accuracy, attribution or branding, and interoperability of news; and
pertain to terms that would be available to all news content creators;
the coordination among the news content creators is directly related to and reasonably necessary for negotiations with an Online Content Distributor that are otherwise consistent with this Act; and
the negotiations do not involve any person that is not a news content creator or an Online Content Distributor.
Rule of construction
Except as provided in this Act, this Act shall not be construed to modify, impair, or supersede the operation of the antitrust laws.