Making Facebook Pay (for the news)

We fought the Internet tax and the link tax to stop the open Internet being crushed in the name of saving the media. But what will we do when the next big idea comes along?

Newspaper boxes Tom Magliery CC BY-ND 2.0

In March, Cynthia Khoo and myself presented a lightning talk to an audience of digital rights advocates and experts at RightsCon Brussels, 2017. This piece is based on our co-written talk. We look ahead to critical inflection points and emerging policy issues when it comes to major online platforms such as Google and Facebook, and their ongoing outsized accumulation of power over our lives.

We all know that quality journalism is in trouble, and yet more essential than ever. Every day sees further hand-wringing (with good reason) on the part of media outlets, governments, and everyday newsreaders alike. How can we ensure that we do not sacrifice journalism and access to high-quality information at the altar of digital living?

Governments in multiple countries have tried a few ideas — but none of them good. Both of us have been involved with OpenMedia’s work tackling several initiatives that involve imposing a tax on the Internet for the sake of funding journalism. We think there are better ways, which don’t pit these two democratic lodestones against each other.

The two attempted “taxes” that OpenMedia has fought, in particular, include:

1. The link tax in the European Union, which would charge search engines copyright royalties for excerpting and linking to news articles in search results.

2. The Internet tax in Canada, which would have levied Internet service providers (ISPs) to fund Canadian cultural production.

OpenMedia fought both of these proposals because they would have hit the Internet hard. The link tax would have, as suggested, killed the hyperlink by pricing it out of existence. The link is the fundamental building block of the web, and a link tax would crush our ability to share and access news, with a few big players reaping all the benefit.

Meanwhile, the Internet tax would have increased the costs of already barely affordable Internet access in Canada, where mobile wireless prices are some of the highest in the world. This would have increased the digital divide while doing little to truly help Canadian cultural content.

Recently, some Members of Parliament in the United Kingdom proposed a third route to leveraging the Internet for the sake of media content: taxing Facebook, Google, and other digital platforms to pay for journalism. This idea didn’t get far, but it has generated a lot of interest and we expect it to pop up in more places again soon.

In fact, we think that a “platform tax”, if you will, is the next big idea that people think will save journalism by leveraging the Internet. This would be a direct tax on the profits of today’s digital giants, and the funds raised would go to news agencies or media outlets. This means that we, as digital rights advocates, have to be ready to respond when that happens (again).

What does being ready to respond mean? It means that we have thought through what digital platforms are and what they do, as distinct from ISPs, and as distinct from other websites, and what that implies for how we approach them legally or socioculturally.

It means we’ve thought through all the tricky questions, red herrings, points of confusion, and potential unintended consequences of the policy positions we advocate when it comes to digital platforms. This is particularly the case when it comes to their potential role — if any — in funding journalism.

So, to get the ball rolling, we’ve put together an overview of some key issues that will be critical to nail down in our advocacy positions when it comes to wrangling with the idea of taxing digital platforms to fund journalism. We hope that our thoughts and questions below will prompt further insights into the complicated choices digital rights advocates will have to make on this issue going forward, and when trying to change the world for the better.

Issue 1: The Intermediary Liability Dance

For a long time, platforms like Google and Facebook have been able to play both sides of the field. Sometimes they’re an intermediary, and we should leave them alone to be a passive site. OpenMedia has historically campaigned against intermediary liability because if the law makes websites responsible for what their users post, when the former does not and should not have control over the latter, than that will quickly lead to censorship and a chill on free expression online.

On the other hand, sometimes we do consider online platforms to have a measure of editorial control — or the platforms themselves claim editorial control — and thus they should also bear accountability for what happens as a result of their businesses. One example is when Facebook removed photographs of Syrian artist Khaled Barakeh because people flagged them as “inappropriate”.

It’s complicated because you have private institutions playing a very public role in society, with all the corresponding power, but subject to near-zero public mandate or regulation to protect the public good. On top of that, they and we are inconsistent about whether or not such platforms do have or should have an editorial role. So for those of us who care about an open and democratic Internet, how do we navigate that line?

Issue 2: Beware of Supporting Wrong Reasons for the Right Outcomes

We are not saying that Facebook should be left alone just because it is not an ISP, but neither are we saying that Facebook should automatically be on the hook simply because it is a monopoly corporation.

There are many problems with platforms such as Facebook. This means that it’s even more critical that we correctly identify the root causes of those problems, so we can direct our limited resources towards the right targets.

For instance, one of the main problems that many digital rights advocates have with Facebook is that they are trying to become the whole Internet for certain segments of the world. The company has also engaged in repeated, biased censorship, and it relies on algorithms that can promote disinformation as well as discrimination.

In view of that, we have to be clear about the underlying rationale for the ask, or risk shoring up positions that contradict what we are really advocating for in the long run. If we think Facebook should pay for news, it may not be because the platform happens to be a monopoly and makes a lot of money or because it “owes” traditional media, but rather because Facebook holds itself out as a public space in society, has built its business model on being such, and profits from it, at the expense of the public good.

Issue 3: Practical Implementation

An easy way to identify weaknesses in bad policy, or even weaknesses in good policy, is to ask: how would this “platform tax” be implemented in practice? For instance, how would the system ensure accountability? Where would the money go, and how would eligible news organizations or reporters be decided?

Where the platform tax is concerned, for instance, what criteria decides which companies must pay the levy? Is it based on size, market share, business activity, or something else? Media Reform Coalition, for instance, put forward a 1% levy on the those with 25% or greater share of the market, to redistribute to non profit investigative news. Would that suffice to reach the intended objectives?

Issue 4: Where do the values lie?

Every situation involves a sense of where the equities, justice, and moral values lie, and public policy is no exception. Whether the issue is taxes, censorship, or Internet freedom, support or opposition is often based in a sense of what is right, or just.

With the platform tax, for example, many say that taxing Google and Facebook is only just, because they already shirk taxes and have a “responsibility to society” to return some of their profits towards the public interest. Some people also say that because Google and Facebook contributed to decline of the news industry, they have a moral responsibility to fund journalism going forward, and that it would be just to require this.

Given that public support systems such as utilities, transportation, and contract law makes business success possible, do these businesses then have a responsibility to give back to the public? And is directly funding journalism the best way to address either corporate responsibility towards public good, or how to save journalism?

Issue 5: Interrogate Instinctive Responses

When it comes to advocating for or against particular policies, it’s crucial to ask, “What is the route of our dislike?” What are the specific reasons behind our frustration with or gut feelings against a particular policy?

For example, with both the Link Tax and the Internet Tax, it seemed that much of the industry lobbying for these taxes, whether the European news industry for copyright or Canada’s cultural production industry for funding, was rooted at least partly in resentment against Google and Facebook specifically.

That is a poor basis for law, as well as policy.

However, it also seemed that most people instinctively felt properly funded news and journalism was a worthier cause than Canadian movies and television produced by legacy industry groups. Leveraging Internet platforms to fund the former intuitively seems like a more acceptable policy than doing the same for the latter. This leads to inquiring, what is responsible for that distinction, and are there implications there for what policies we should advocate for?

Identifying the lines of reasoning underlying instinctive emotional reactions will provide a much stronger basis for your advocacy.

Issue #6: Unintended Consequences

What are potential unintended consequences once our arguments and messaging become established in mainstream public discourse?

Are all consequences confined to the issue we’re talking about, or will it also impact adjacent issues, in possibly unintended ways?

For example, in a campaign advocating against taxing Google and Facebook for news funding, we would have to be careful to convey nuanced enough positions that we don’t excuse accountability for Google and Facebook in other areas, or dismiss the idea of ever raising taxes for anything.

Similarly, if we create laws that specifically target Google and Facebook today, what consequences might that have on the company that comes after Google, or on the platform that arises from Facebook’s ashes?

Issue #7: Maintaining Consistency of Principles Across Issues

How do you maintain consistency of principles across campaigns with different or even opposing positions?

For instance, OpenMedia framed the idea to levy ISPs for cultural content as an Internet tax, and so the campaign risked taking on strong anti-tax rhetoric and messaging. However, we also generally think some things are worth raising taxes for — such as, for instance, affordable Internet for low-income users, or sustainable investigative journalism.

If we later ran a campaign that involved raising fees in some way, would that risk being hypocritical? So the lesson here is that it’s about nuancing and refining your policy positions enough that they can hold up across issues, and that you’re thinking beyond the messaging needs of that one campaign in isolation.

Issue #8: Positive Alternative Vision — What to Do Instead?

If you are opposing a law or policy: what do you propose be done instead?

What is the positive alternative you are putting forth, and what would its implementation look like? Why is it superior, more beneficial, and/or less harmful than the opposed policy?

In the case of nixing the Internet tax, the link tax, and the platform tax, how would we instead propose to fund news and sustainable, high-quality journalism?

Let’s end with a radical idea.

A lot of the debate in the Internet advocacy space around funding journalism often comes down to: “Let them innovate.”

However, most of the time waiting for innovation usually amounts to waiting for the private sector to come up with something. But if we believe that quality journalism is an unalloyed public good, then how can we allow its existence to depend on the success, failure, or public good sensibilities of private businesses?

Robert McChesney, one of the founders of Free Press, proposes we revisit the idea of extensive public investments in journalism. In his book Digital Disconnect, he writes:

“Public investments in journalism are compatible with a democratic society, a flourishing uncensored private news media, and an adversarial journalism. The evidence is clear: the problem of creating a viable free press system in a democratic society is solvable. There may not be a perfect solution, but there are good, workable ones. And in times like these, when the market is collapsing, they are mandatory. … The hand of capitalism seems heavier and heavier on the steering wheel, taking us to places way off the democratic grid, and nowhere is the Internet’s failure clearer or the stakes higher than in journalism.”

That paragraph was written in 2013, and we would suggest that it applies even more today.

Ruth Coustick-Deal is a Digital Rights Campaigner at OpenMedia.

Cynthia Khoo is a Toronto-based lawyer working in Internet policy and digital rights, including acting as external counsel to OpenMedia.