ELLEN MCCARTHY
OPINION — Just a few months after being approved out of the Senate Judiciary Committee, the newly amended bipartisan Journalism Competition and Preservation Act (JCPA) could be on track to become law before Congress recesses for the year. The intent of the JCPA is to ensure that smaller news organizations are compensated for their online content by allowing them to negotiate with platforms like Google and Meta. This is a wonderful goal and Congress should be engaged in policies that address the local-news crisis and ensure a competitive, thriving, independent press in the United States. The question is whether this bill will reach the goal?
It’s a tough question. The 2018 version of the bill was five-pages long and provided an antitrust exemption for newspapers and online news outlets. Today, it is a 35-page set of requirements for how negotiations are structured and enforced. Groups like the Public Knowledge Org have provided excellent reviews of the history of JCPA to include the jaded history of antitrust exemptions, and how smaller news companies may not see much benefit from compensation deals.
But another area that needs review is the impact that the bill will have on the spread of foreign disinformation. Under the new version of the JCPA, U.S. companies like Google, Facebook and Apple would have to carry and pay any website in scope of the bill, that provides news. Since this requirement would extend to foreign news sources, the “must carry and must pay” provision could potentially enable foreign sources to control the flow of information on news feeds viewed by millions of Americans.
The “must carry” provision is not a novel concept and has a checkered reputation. The Federal Communications Commission first passed the Fairness Doctrine in 1949, requiring broadcasters to present both sides of controversial political arguments. The rule was abolished in 1987, and completely removed from the Federal Register in 2011, as part of a broad erasure of unnecessary post-WWII era media regulations.
In the era of internet news, the JCPA seems to be an attempt to revive the Fairness Doctrine for online platforms. But unlike when the Fairness Doctrine was passed, foreign nations are now able to leverage online platforms to spread propaganda to international audiences. As written, the bill could unintentionally fund foreign media entities eager to increase influence over U.S. political and social trends.
While there is some language in the JCPA carving out publications controlled by foreign powers, there are obvious concerns about sophisticated nations finding ways to circumvent this by disguising their ownership of or partnering with a U.S. publication to spread propaganda to a wider U.S. audience – and to financially profit for doing so.
Foreign media companies are already pursuing this goal.
In 2021, the Justice Department disclosed that the People’s Republic of China (PRC)-controlled China Daily spent millions of dollars on advertisements and articles favorable to the PRC government. This content was featured in U.S. publications including Time magazine and Foreign Policy. Many other foreign media companies have used this model to try to influence a U.S. audience.
The Department of Justice’s Foreign Agents Registration Act (FARA) Unit works to identify and register foreign-owned media and reveal foreign influence efforts. However, U.S. recognition of certain entities as a foreign agent does not necessarily restrict what state-funded, state-directed, or sanctioned international outlets like RT, Sputnik, InfoRos, and others can publish in the U.S.
Entities owned or controlled by the Chinese Communist Party or the Kremlin already produce enough content in multiple languages and devote significant resources to advertising and syndication. U.S. legislation should not serve as another avenue to promote misinformation on issues like the Russian invasion of Ukraine, human rights violations in Xinjiang, or the Taiwan Strait.
Congress is right to focus on laws that provide Americans with more access to smaller independent media groups and local news, which directly correlates to citizen engagement. Congress should also consider legislation, either in the JCPA or elsewhere, that compels platforms to provide funding for disinformation/misinformation education initiatives, libraries, public-information health organizations, and new innovative solutions to create a world where fact-based information is easily available.
But as Congress debates the merits of JCPA, and it seems that more debate is required, they must ensure at a minimum, that this legislation does not ultimately undermine ongoing efforts to combat foreign and domestic misinformation and disinformation. In its current form, the JCPA risks proliferating and funding the same misleading sources it aims to minimize.
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