Netanel on Mandating Digital Platform Support for Quality Journalism

Neil Weinstock Netanel (University of California, Los Angeles – School of Law) has posted “Mandating Digital Platform Support for Quality Journalism” (34 Harvard Journal of Law &Technology (forthcoming Spring 2021)) on SSRN. Here is the abstract:

Our democracy depends on a vibrant press, dedicated to informing the electorate and holding the powerful to account. Yet American newsrooms have suffered a debilitating economic decline in recent years, leaving more than half of U.S. counties without a daily newspaper and precipitating massive reductions in journalist employment. Digital platforms, primarily Google and Facebook, have been a primary cause of newsrooms’ decline. In asserting unparalleled dominance over the digital advertising market, they have siphoned off the advertising revenues that were the lifeblood of the commercial news media. And they have come to be news publishers’ primary gateway to potential readers, leaving newsrooms highly dependent on the platforms’ mercurial content selection and magnification algorithms.

This Article thus proposes legislative initiatives to require digital platform support for quality journalism. Finding current antitrust enforcement initiatives and legislative proposals for news publishers’ intellectual property rights and antitrust exemptions wanting, it sets out blueprints for an excise tax on digital advertising to fund quality journalism and for bolstering newsroom brands by mandating that major platforms give original reporting prominent placement in news feed and search results. News publishers should also have a right to require platforms to include a link to the publisher website and to display a third party media watchdog trustworthiness rating of the publisher’s choice. Finally, major platforms should be required to open their application programming interfaces to enable news publishers to offer the publishers’ own curated news content feed directly to platform users.

Those measure, I argue, should survive First Amendment scrutiny. They might not salvage quality journalism in and of themselves. But they are an important springboard for further government intervention in an ongoing market failure with dire consequences for democratic governance.