Protect Indian media from predatory tech platforms
Silicon Valley has always preferred to portray itself not as a profit-making enterprise, but as a populist crusader for free speech. From invoking Martin Luther King, as Facebook founder Mark Zuckerberg did in a speech to defend his company’s strategy to allow false political advertising in the United States (US), to framing catchy slogans such as “Do No Evil” (Google) , the technology firms have played an aggressive advocacy game to keep public opinion in its favour.
More recently, the original defenders of free speech — traditional news publishers in western democracies — have locked horns with Silicon Valley companies such as Google and Facebook over advertising revenue and the fake news propagated on these technology-enabled platforms. These news publishers charge the technology companies with two sins that threaten not just the news industry across the world, but also democracy in India.
The first sin is that of playing an outsized role in peddling fake news. Rather than investing resources (proportional to their trillion-dollar valuations) to keep fake news off their platforms, most Silicon Valley companies pass the buck to users in the name of “free speech”. Any attempt to get these companies to crack down on fake news invites allegations of censorship. This tsunami of fake news is undermining the traditional media in India, which unlike the Silicon Valley platforms, continues to bear the risk of prosecution for publishing speech that falls foul of Indian laws. This means, that unlike, the technology companies, the news business has to employ editors, reporters and fact-checkers to ensure that their news is authentic.
The second sin that these technology companies are often charged with is their tendency to profit off the work of others without paying them. No news aggregator, including Google and Facebook, generates any content of its own. The only way they can bring people to their platforms is by leeching off the content of others. While producing a video of a cat playing with a ball of yarn or making a viral meme is not expensive, it does cost a pretty penny for news publishers to pay journalists to collect, verify and publish news.
Once published, these news stories are shared on platforms like Facebook and Twitter, thereby, drawing more users to them. Google operates in a slightly different way. By aggregating links to the websites of almost all news outlets in the world on its popular Google News platform, it offers users a one-stop-shop to find news stories. In the process, both Google and Facebook collect heaps of personal data of users that then allows both of these companies to offer targeted advertising solutions for their clients at a scale that the traditional news media cannot even dream of. In the process, news publishers around the world are losing significant advertising revenue to these giants.
As the fourth pillar of democracy, the news media is one of the few industries whose financial health can affect the quality of a democracy. Across the world, there are two reform measures being discussed to alter the skewed equation between these tech companies and news publishers. The first reform measure is aimed at removing the “safe harbour” provisions in the law that provide Silicon Valley platforms with legal immunity for content posted by others. This is one of the reasons that Facebook, WhatsApp or YouTube cannot be sued for defamation or hate speech in most countries, despite profiteering from the traffic that such speech often draws towards their platforms. Removing this immunity will create incentives for them to invest more in content moderation. As of now, the progress on this front is slow.
The second reform measure, which has already come into effect in Europe, and is under discussion in Australia and the US, is granting news publishers a legal right to charge a royalty from Silicon Valley platforms every time the latter displays a link to a news report with a short snippet. Accompanying this amendment is another measure that allows news publishers to create legal cartels in order to negotiate collectively with the platforms, without being subject to scrutiny by competition regulators. There is no guarantee that this law will work as intended because it is predicated on the news publishers and Silicon Valley firms arriving at a deal on the royalties. It is theoretically possible for companies like Google to shut out European news publishers from Google News. The company did this with Spanish news publishers a few years ago when Spain enacted a similar law. Such a refusal to deal with European news publishers may invite anti-trust scrutiny from competition regulators, but that is a long and messy road.
So where does this leave Indian news publishers? There is surprisingly little public discussion on this important issue in India. Many of the legacy print news publishers are experimenting with paywalls and transitioning to a subscription-based model, but none of them are close to mastering the new business model. Even in the West only a few such as The New York Times have cracked the digital model. It is not easy to convince Indians to purchase subscriptions for online content that they are used to accessing for free.
With Google, Facebook and other Silicon Valley companies eating into the traditional advertising pie in India, it is likely that the Indian news industry is going to lose revenue over the next few years as digital penetration increases at the cost of print revenues. At some point, news publishers will face a moment of reckoning. The weaker the financial health of the news industry, the less likely it is to spend on reporting. It is possible that some level of policy intervention will be required to strengthen the revenues of the Indian media. But any such intervention must be guided by empirical evidence based on Indian realities.
It would be a mistake for India to copy the policies of the European Union or Australia, without accounting for the realities of its own news industry. The ball is now in the court of the Indian news publishers. They will have to make a case to convince public opinion of their need for protection from the conduct of the SV platforms.
Prashant Reddy T is an intellectual property lawyer and co-author of Create, Copy, Disrupt: India’s Intellectual Property Dilemmas.
The views expressed are personal