Editor’s note: The Fix is introducing a series of articles on the rapidly changing regulations of the media. We discuss recent legislative pieces drafted and adopted at the EU level, as well as in national law, to provide insights on how they affect news publishers in the coming years. The main trends of the last couple of years included more obligations imposed on platforms, efforts to curb AI, ensure prominence of public service media, and facilitate pluralism.

This article takes a closer look at platform regulations and governments’ efforts to tighten their loose remit of hosts.

Interestingly, platformisation is seen as a hindrance by both democracies, hybrid regimes and authoritarian states.

Recent wide-scale government inquiries, such as the 2019 ACCC in Australia and the 2019 UK Cairncross Review, detailed and summarised how platforms affect news publishers in particular. Stripping of revenue on an ad market and the bargaining power imbalance caused by unequal access to user data, as identified, contributed to the growth of news deserts and the nearly 25% decline of journalist jobs in recent years. That happened before the pandemic and new regional wars entered the scene amplifying such trends.

Even in the EU, which always tended to maintain its public value focus, it was not until fairly recently that some bold policy advancements have taken place.

The 2022 Digital Markets Act identifying gatekeepers and the 2022 Digital Services Act toughening consumer protection responsibilities have prepared the ground for more domestic nations’ regulation of the digital sphere, alongside legislative decisions in the US, Canada and Australia.

The concern of many government inquiries boils down to the fact that social media, messengers, AI startups and streaming services (subscription video on demand services / SVoDs) are mostly private entities with no stake in the public sector.

Making tech platforms pay for news

Since Facebook aspiringly presented and then swiftly shut down its Journalism Project, the competitive symbiosis between content creators and platforms has been dramatised. The infamous management of X by Musk and AI-generated fakes amplified by algorithms have added to the rivalry. Publishers keep claiming that platforms are stripping them of their revenue and reach, while relying on creators’ free labour and acting anti-competitively, and social media remain determined to distance themselves from hard news and politically charged content.

In 2020, Australia uncompromisingly required both Facebook and Google to pay news publishers at scale, following the 2019 Australian Competition Commission Recommendations. Such a decision alongside the general trend of more and more regulation in states have contributed to platforms’ alienation from news. In early 2024, Meta announced it would get rid of the news section entirely in Australia and the US (after it has already done so in Europe and the UK).

While some nations, like France and Spain, have unsuccessfully attempted to seal the deals and make platforms pay for news in the past (resulting in, for instance, Google simply taking down EU’s publications from Google News), the trend remains alive. In 2023, Canada implemented its Online News Act with pretty much the same pledge, which only led to Meta banning news content for Canadians in response right after the law entered into force.

While more government pressure might mean some funds raised for outlets, like the hard-reaching deal struck between Google and Canadian publishers, platforms are likely to widen the gap between institutionalised journalists striving for credibility and partisan bloggers.

On the other hand, small publishers relying on social traffic way more than major news brands seem to be affected the most.

Sharing user data with businesses

Unequal bargaining power resulting in market failures is yet another concern for policymakers.

The EU 2022 Digital Markets Act, with which platforms had to comply by March 2024, aims to alleviate the pressure on small businesses depending upon access to consumers via digital advertising and online marketplaces. The act defines the term “gatekeepers”, allowing the European Commission to conduct investigations and consider platforms as such.

So far, Meta, Apple, Amazon, Microsoft and ByteDance have been on the list.

All of them have already introduced the updates, like expanded fee reports with Amazon Ads and Apple allowing use of other than its own payment services while promoting offers on the platform. Some have successfully filed exclusion requests for their chosen businesses: Bing, Edge and iMessage are among them.

More importantly, the provision obliges platforms to share internal data with business users and contains rules on interoperability. Ad figures and flexibility for advertisers look especially timely for publications after issues of algorithmic haze and inaccuracy have been raised.

Non-compliance traditionally implies fines (up to 10% of annual turnover) and may lead to the divestiture of a company business in case of numerous breaches.

SVoDs to feature public broadcasters

Even more so governments seem to be concerned with the future of broadcasters. In particular, those with the public service remit.

Many think-tank reports emphasise the growing popularity of streaming that slowly but surely replaces TV hours, makes major public service broadcasters less competitive in the marketplace and is said to contribute to the public reluctance to support balanced journalism (in cases like the BBC, to avoid paying the licence fee).

While Europe pioneered with its idea to address regulatory asymmetry and introduced quotas and mandatory funding for local production in its revised 2018 Audiovisual Directive, the highly debated Media Bill also passed in the UK in 2023. It is going to ensure that channels like the BBC and iTV are featured in streaming sticks and on Smart TVs. Ideally, that would help broadcasters gain digital prominence, somewhat distracting audiences from SVoDs.

The law also levelled US streamers with broadcasters, placing them under the same Ofcom’s code of conduct and ensuring they abide by similar rules regarding harmful content.

Canada has joined the approach and introduced the 2023 Online Streaming Act aimed to equalise PSBs and SVoDs and make platforms fund local programming.

Giants like Netflix claim they are generally determined to collaborate with regulators like Ofcom, although strict protectionism, like in Israel or France, is sure to cause friction.

Social media and harmful content

Given the effect misinformation and fakes have on elections and citizenship worldwide, regulatory bodies are trying to make platforms at least partly responsible for the content they host.

For many years, social media benefited from loose remit of platforms rather than publishers. Such status allowed them to be exempt from codes of conduct in place for the latter and avoid lawsuits concerning both unethical, misleading content and copyright infringement.

On the other hand, giants like Facebook have managed to develop elaborate self-regulating guidelines allowing them to stay flexible business-wise (but frequently facing backlash for inconsistency).

The 2022 EU Digital Services Act, complementing the Markets Act and having entered into force in February 2024, focused on consumer protection and introduced categorisation of digital services and intermediaries implying special requirements for “very big online platforms”.

They are bound to provide users with more options (for instance, to opt out from personalised feeds, to flag illegal content, to receive more feedback on a takedown) and demonstrate their best effort in tackling the spread of harmful posts and preventing further reuploading (through internal and independent audits).

Partly inspired by the EU, in 2023, the UK finally passed the Online Safety Act with strict measures of child protection on the Internet and heavy fines (up to 10% of global turnover) for social media that do not comply. It requires platforms to tailor their processes and systems to effective management of illegal content too.

While dealing with disinformation is high on the agenda, such requirements immediately brought talks on controversial content filters platforms are forced to develop. The problem is that alongside “terrorist content”, essential war coverage or sensitive social campaigns may be sacrificed.

To give an example, Ukrainian publishers have already faced the limitations of Meta’s policy whose platforms frequently shadow ban or take down the reporting of Russia’s invasion.

Media legislation that affects news publishers in 2024: Platforms

Olena Myhashko

Many governments have taken on the challenge to address platformisation

Author

Olena Myhashko

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