US media lobby group, the News/Media Alliance, is calling on the Justice Department to retaliate against Google with a politically motivated “investigation”.
The other day, I wrote about how Google has started a test of blocking news links in California. This is far from the first time Google has conducted a test of this nature as they have done so in both Australia and Canada. In both instances, Google ended up signing on to a deal to allow the government to chip off a chunk of change in exchange for not deep sixing the entire media sector with news links being dropped from Google services. This track record has made it difficult to really assess whether or not Google would actually follow up the tests with a full news link blocking in California.
Nevertheless, it seems that the US media lobbying machine has already gotten to work in an effort to retaliate against Google. In a press release, the News/Media Alliance is calling on the Justice Department and lawmakers to retaliate against Google’s test by launching an “investigation” on Google. From their press release:
Arlington, VA – Today the News/Media Alliance (the Alliance) sent letters to the U.S. Department of Justice (DOJ) and the Federal Trade Commission and, along with the California News Publishers Association (CNPA), to the California State Attorney General, requesting that they investigate Google’s unprecedented decision last week to block or impede the ability of some Californians to obtain access to California news websites in Google Search for possible violations of multiple laws.
On Friday, April 12, Google temporarily removed content by California-based news outlets from its Search platform for some state residents, retaliating against proposed legislation in the state – the California Journalism Preservation Act (CJPA) – that would require Big Tech platforms, including Google and Meta, to pay news publishers for use of their content on its platforms.
In its letter to the DOJ and FTC, the Alliance points out several potential laws that Google could be in violation of as a result of its news blocking including the Lanham Act, the Sherman Antitrust Act, and the Federal Trade Commission Act and asks that the DOJ and FTC investigate whether the technology giant has violated these laws. In the letter to the California Attorney General, the Alliance and CNPA point out possible violations of the Unruh Civil Rights Act, prohibitions against false advertising and misrepresentation, the California Consumer Privacy Act, and California’s Unfair Competition Law (UCL), and asks the CA Attorney General to investigate the possible violations.
In other words, the lobby group is trotting out the same old tired argument that blocking news links is somehow an antitrust issue. The charge that a platform is violating antitrust laws by dropping news links never held water in either Australia or Canada. Just examining basic facts about the two industries pretty much kills off such arguments.
Simply put, Google doesn’t hire whole teams of journalists to cover local events such as sports, politics, and other topics. What Google does do through its search engine is, well, allow users to search through the web for content and find that content easily. Conversely, media companies haven’t put together a search engine to scour the internet for content of all types. The two are completely different industries.
Further, antitrust laws are technically about one business taking up a huge portion of the market and engaging in unfair business practices to put its competitors out of business. Not only is Google not in the news production business, but it is potentially taking steps to end what relationships it has with news entirely. It goes without saying that this is the exact opposite of being anti-competitive.
What’s more, if Google ultimately chooses to fully end support for news links, this isn’t some kind of free speech violation. After all, Google isn’t the government. Google’s services are ultimately private property. If there is speech that Google doesn’t want on their privately owned property, they are well within their right to remove that speech. Whether that is someone posting a video or posting news links, if Google determines they don’t want that speech on their services, they are well within their right to remove that speech. The same goes for news links that are published at the request of news publishers (you have to voluntarily submit information to Google to appear in Google News).
Additionally, the action Google took was a test for a select number of visitors from California. It’s not necessarily indicative of a final decision, but rather, a method of finding out if their systems can comply with the various link tax laws moving forward. I’m not really seeing a legal path forward challenging Google based on the tests alone.
Unlike other countries, though, there is certainly caselaw in the US that says compelled speech is a violation of the first amendment. Trying to legally force Google to carry news links would be unconstitutional in the US. Even if you were able to argue that Google dropping news links is not legal, government demanding that those links be restored would very likely be unconstitutional. You would have to reverse a considerable amount of caselaw to be able to argue otherwise.
If anything, the test is a sign that Google sees a legal path forward to dropping news links if things don’t turn out so well. If dropping news links in California in response to the California Journalism Preservation Act (CJPA) was not legally viable, it would be difficult to really see why Google would bother with these tests. In all likelihood, Google read the bill, consulted with their legal teams, and determined that this is a possible path forward. Otherwise, I would have likely seen Google threatening to sue directly instead.
All this smacks of the lobby group trying to play political games. Nothing new in these kinds of debates as we’ve seen, in many instances, media companies playing political games in other countries. Little surprise that it’s happening in the US as well.
Google should say it will put news links behind a pay wall if it has to pay for news links. It could do this by putting all news links in a separate tab.
An interesting idea to say the least. Basically, paywall Google News Showcase and let users pay for it afterwards. If publishers thought they didn’t get as much traffic as they had hoped from that service before, just wait until it gets paywalled!
I think one reason news media has an inflated sense of its worth to Google is that a number of searches return news and non-news links. For example, a search for COVID turns up government, medical, nut job, and news sites. The news media sees this and says” See we’re important”, but they have no idea which links are clicked on and how much revenue the search generated. Google does know, but it doesn’t know how the ad revenue for the search would be impacted by dropping news links.
Splitting search results between news and non-news tabs with separate ads on each tab would be a better indicator of the demand for news links and their value. It also gives Google the option of putting the news tab behind a pay wall and blaming the news media and the government for it.
User reactions to a paywall will be negative, but Google is much better positioned to absorb a user backlash than the news media is.
Oh, Google is FAR better positioned to absorb any potential negative impact. From the news website’s perspective, it’s not out of the ordinary for a website to have anywhere between 60% to 85% of their traffic coming from Google. There are, of course, exceptions to that rule such as websites that are completely paywalled from the getgo and have a completely different strategy for reaching their audience, but most try and push their search results up with SEO and other efforts because they know it will boost their traffic. A number of websites would see most of their traffic wiped out overnight if their websites were no longer indexed on Google.
You are right that seeing their own sites appear on results gives them an inflated sense of ego. When the senate hearing on Bill C-18 was on, one of the lobbyists actually said that if you search for “what stores are closed on [holiday]”, news articles turn up in the search results. It’s a very specific search term that was chosen because it portrays them in the best possible light. What they conveniently left out is if you search “is [store] closed on [holiday]”, you’ll get a Google specific card showing Google maps for locations as well as the hours for each location. You might get the official store website as well as their Facebook page before getting other results afterwards. The comments told me that they not only get an inflated sense of self worth, but they also manipulated things to try and bolster their feelings of self-worth in the process.