Statement to the Judiciary Subcommittee on Antitrust

March 12, 2021 by Jeff Jarvis
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I was called about possibly testifying to a hearing of the House Judiciary Subcommittee on Antitrust regarding technology companies. That’s not happening but I decided to submit a statement to the committee. Here, minus my bio, is what I have to say:

Statement to the Subcommittee:

I write to the committee to express my concern about often well-intentioned but ill-conceived internet regulation, which could have deleterious effects on freedom of expression; which tends to protect incumbent media and technology companies at the expense of innovation and competition; and whose unintended consequence is frequently to grant internet platforms yet greater power. It is worthwhile to examine the effects of internet regulation elsewhere as it is debated here.

Consider, for example, Australia’s media code. The net result, according to the news site Crikey, is that the country’s existing media duopoly of News Corp. and the Nine Network will receive 90 percent of the money being paid by Google and Facebook, both of which are now in the position to decide which news organizations should receive support. Small news startups that might compete with the powerful incumbents receive no protection or support in the law. The Australian code amounts to a link tax — for those companies that link to news are required to pay for news — and Sir Tim Berners-Lee, inventor of the web, testified to Australian legislators that such a precedent would “make the web unworkable around the world.” It would break the internet. I regret that in the end, Google and Facebook succumbed to what I see as corporate and political blackmail.

In Europe, various changes to copyright law — Germany’s Leistungsschutzrecht, Spain’s link tax, the EU’s Articles 15 and 17 of the its Directive on Copyright — amount to regulatory capture, for the large internet companies can afford compliance but I have spoken with smaller competitors for whom the expense and effort are crippling. Germany’s NetzDG hate-speech law requires Facebook to decide — in a private company rather than an open courtroom — what speech is manifestly illegal. Europe’s Right to be Forgotten court decision puts Google in the position of deciding what speech should be remembered or forgotten. The UK is considering regulation that would require platforms to take down “legal but harmful speech.”

Online speech is imperiled in many quarters. In Italy, Facebook was forced to reinstate a site for a neo-fascist group. Poland has announced a new law that would require platforms to carry all legal speech, a nightmare that would protect the worst of the net. I would remind us that compelled speech is not free speech. In addition, Singapore instituted a fake-news law, which puts internet companies in the unwanted position of being arbiters of truth. Similarly, India is enacting regulation that would require platforms to take down speech that is false or threatens national unity.

In the United States, Google’s recent announcement that it will forego ad targeting on the web based on third-party data was applauded by privacy advocates who have demonized web cookies as so-called “surveillance capitalism.” But this again amounts to regulatory capture as Google itself has plentiful first-party data about consumer behavior as well as the resources and technical means to innovate in advertising. Incumbent publishers, on the other hand, are stuck without their own first-party data or innovation. I know this because in my university center, I spent years trying to convince publishers to change their product and business strategies to prepare for this day. They generally insisted on relying on their dying print businesses and on third-party ad networks online, and now they are retreating behind paywalls. As a result, just when we need it most, reliable news is becoming a product for the privileged few who can afford it. According to Oxford’s Reuters Institute, only 20 percent of Americans pay for online news and it is a winner-take-all market with most people paying for only one subscription for news — almost two thirds of subscriptions go to just three publishers: The New York Times, The Washington Post, and Rupert Murdoch’s News Corp.

Note well that most local newspaper companies in the United States are now controlled by hedge funds, which are not inclined to invest in innovation and which, by their nature, tend to sell assets and draw cash out of these enterprises. If there ever were an attempt to enact an Australia-like law here — if it could overcome clear First Amendment objections — any money resulting from it would end up in the balance sheets of hedge-fund owners and would benefit neither journalism nor innovation at legacy, local news companies.

Thus to grant newspaper owners an exemption from antitrust, as has been discussed, would be profoundly anti-competitive, for it would — as in Australia — entrench the interests of the largest companies on both sides of the table, media and technology.

Similarly, I argue that breaking up major technology companies is an emotional response to the discussion of technology and power. It would not meet the test of rectifying consumer harm, for users benefit tremendously from free, open, and inexpensive services. Also, there is considerable competition; note Microsoft’s role in this debate.

Instead, in both industries — technology and media — the best cure for concerns about size is to encourage and support entrepreneurship and new competition. In my university, I started a first-of-its-kind program in entrepreneurial journalism to teach journalists to do just that. I hope next to turn my attention to internet studies, to foster the design and creation of a next generation of the net: one built not just to speak but to listen, one designed to build bridges rather than battlements, one that protects the benefits of today’s historically unprecedented opportunity to hear voices too long not heard in mass media. There is much work to be done and much opportunity to create competitors to the present proprietors of the net and media. This is where we should focus our attention in policy.

The net is yet young. We don’t fully know what it is and may not for generations, even centuries. Note that the first newspaper was not published until a century and a half after Gutenberg introduced movable type. In my research for a book on the end of the Gutenberg age, I have learned much about the reaction to the introduction of printing. After initial and brief utopian glee at its prospects, authorities worried greatly about print’s power to spread the fake news of the day, to cause unrest (the Reformation and the Thirty Years’ War), and to disrupt institutions. I have also learned that governments’ attempts to control printing and thus speech largely failed. In a prescient 1998 paper for the RAND Corporation, “The Information Age and the Printing Press: Looking Backward to See Ahead,” James Dewar argued persuasively for “a) keeping the Internet unregulated, and b) taking a much more experimental approach to information policy. Societies who regulated the printing press suffered and continue to suffer today in comparison with those who didn’t.”

In what I have said here, it might sound as if I oppose all internet regulation. I do not. I worked for more than a year with a Transatlantic High-Level Working Group on Content Moderation Online and Freedom of Expression, convened by former FCC Commissioner Susan Ness under the auspices of the Universities of Pennsylvania and Amsterdam. The group included many experts and luminaries, such as former Secretary of Homeland Security Michael Chertoff, former Ambassador Eileen Donahoe, former Estonian President Toomas Ilves, and former members of the European Parliament Marietje Schaake and Erika Mann. Our report recommended a flexible framework for internet regulation based on transparency as the basis of accountability as well as the establishment of e-courts to rule on matters of legality where that should occur, in public and in court.

To put this in my terms, I have long argued that both technology and media companies should make covenants of mutual obligation with their users and the public — not just rules for users but promises from the companies for what we may expect of them in building useful, respectful, and productive services and environments. In the model of the Federal Trade Commission, I would favor requiring them to provide data about their implementation and impact so as to hold them accountable to their promises. I also hope for a multistakeholder forum — of technologists, lawmakers, regulators, civil society, academics, and users — to grapple with new and unforeseeable problems, such as pandemics, and to exploit new opportunities.

Internet regulation should not be about punishing power or success but instead about creating the means to work together for a better internet, a better society, a better future.

Murdoch’s law and the net

February 18, 2021 by Jeff Jarvis
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Here’s my interview with ABC News Australia and then my discussion with Mathew Ingram of the Columbia Journalism Review about the fallout from Murdoch’s media law and pressure on the platforms in Australia.The discussion with Mathew occurs on Galley, CJR’s platform for dialog. I’m posting it here because Mathew got me to sum up my views in one place.

Mathew Ingram: Over the past year, Australia has become Ground Zero in the battle over payment for content, since that country is working on a mandatory code that would force Google and Facebook to pay news publishers for using even a small portion of their articles. Both Google and Facebook have threatened to pull some or all of their services from the country if the code goes through as planned, but at the same time, Google has been cutting side deals with larger publishers — not just in Australia, but in France, Germany and a number of other countries — to pay them for featuring their content in its Google News Showcase.

We’re talking this week with journalists and other experts about how we got here and where this whole phenomenon is likely to end. Our next guest is Jeff Jarvis, who is the director of the Tow-Knight Center for Entrepreneurial Journalism at the Craig Newmark School of Journalism at the City University of New York, where he helped create the News Integrity Initiative (which is partially funded by Facebook). Prior to joining CUNY, Jeff was the president and creative director of Advance.net, the online arm of Advance Publications.

Jeff, thanks very much for doing this. Since we began this discussion series, there have been a couple of big developments, and I’d be interested in your thoughts on either or both of them: 1) News Corp. announced it has signed a deal with Google to be paid for its content, and 2) Facebook just announced that it is blocking Australian publishers from posting or sharing news, and blocking users in that country from seeing or sharing any news.

Jeff Jarvis: This is a disappointing day for the internet and for news in many ways.

First, Google: What Google’s payment to News Corp. demonstrates is that media blackmail works. Even if this is not a payment to pay directly for links, this is still a terrible precedent for the net and its architecture and ethic. No one, not Google, not you or I, should be pressured into paying for linking to content. That, as Sir Tim Berners-Lee told Australian authorities, breaks the web. I would have hoped that Google would have stood up for principle — that is for the open net. It’s a company; even I — author of a book called What Would Google Do? — should not expect too much of them. On the one hand, they are not paying for links per se. But they still paid the devil Murdoch. They caved.

As I wrote in Australia’s Crikey, I am also sorely disappointed in my old friends at The Guardian for cynically falling in league with the devil Murdoch. The Guardian was to be Australia’s guardian angel fighting him.

In the end, regulation that tries to take power away from platforms inevitably gives them more. In Europe, under the Right to be Forgotten, Google decides what we may remember. In Germany, under NetzDG, Facebook decides what speech is illegal, outside a courtroom. Now in Australia, Google decides which news organizations should get money. Small sites and startups will suffer for this is a power game; more money goes to the more powerful. I do not think Google cares much about news. There will not be much traffic to its News Showcase. The CPM cost of this — if we knew the amount — would doubtless be extraordinary. This is not a payment for news. It is baksheesh paid to Murdoch, demanded by his bagmen, the politicians in his pocket.

What also disturbs me is that news organizations, which lately turned from utopian in their coverage of technology to dystopian, never reveal their own conflict of interest in their coverage of the net and its current proprietors. The moral panic in media coverage serves media’s ends as this episode sorely demonstrates.

Let us be quite realistic about the use of these funds. It will not go to journalists. It will not improve news. It will go to the rapacious owners and hedge funds that control news companies.

Now Facebook: There are two interpretations. The positive one is that Facebook stood on principle, decided not to cave in to Murdoch’s blackmail (or not again as Zuckerberg already presented a check to News Corp’s Robert Thomson in New York a year ago), and defended the sanctity of the link on the net. The cynical interpretation is that news is a damned pain in the ass for Facebook and this moment allows them to return to a Facebook devoted to puppies, parties, and getting laid. We shall see. I worry, though, about what will happen when your Australian uncle Joe shares disinformation and you are not allowed to combat that by sharing news. I do hope researchers study the impact.

In any case, I am disappointed in the platforms for not adequately defending the principles and freedoms of the net. I am disappointed in news organizations that played along with Murdoch — just as we barely begin to come out of the nightmare he caused in the United States and just as he brings his Fox News-like poison to Australia with Sky News there and to the UK with a new news channel. This is when we in journalism should be shunning and shaming Murdoch and his cronies. Instead, news organizations danced with the devil. I hope the tune was worth the price of their souls.

A bad day for news. A bad day for the net.

Mathew Ingram: Thanks, Jeff. It does seem a little odd to me that Facebook has made so much of its commitment to quality news, and its desire to improve the information environment on its platform — Mark Zuckerberg gave a whole speech about his commitment to free speech principles — and yet an entire country has just been blocked from sharing or publishing news. Does that surprise you at all?

Jeff Jarvis: Facebook warned it would do this, so I was not surprised. They had already agreed to pay many companies for full articles for the News Tab (including News Corp.). I guess with this they said there’s no more blood to be squeezed from the stone. Even when they started News Tab, Zuckerberg said they were aware it would not get much traffic; it would be used mainly by news whales (as they call us) like you and me; I interpret that as him saying it would be unprofitable. So this may be Zuckerberg facing down the bully and saying: Enough already.

Or, again, it may be an experiment for the rest of the world. Let’s play this out a bit. I am reminded of the ridiculous front pages of Canadian newspapers last week: blank with the message, “you’ll miss us when we’re gone.” (What a statement of entitlement!) Well imagine a world in which Facebook declares the Australian move a success, making for a more pleasant user experience, and they decide to ban links to news throughout the world. [To be clear, they have not threatened that.] Will we miss them when they’re gone? I think we will.

I want to remind readers that Facebook was not started for news. Our readers took news there because we in our field did not provide the mechanisms for them to share it and discuss it with friends outside of awful comments sections. Twitter was not started for news; our readers, as witnesses to news, chose to share it there. Google was not started for news; our industry could not get its act together (see: New Century Network) to provide an overview of the news ecosystem. We could have started Next Door to allow our local readers to meet with neighbors years ago, but Silicon Valley beat us to it. Our readers deserted us because the net provided mechanisms we did not. And we did not because our colleagues in news have been too busy trying to find new ways to pay for old ways instead.

If I sound the grump today, good.

Mathew Ingram: Thanks, Jeff. It seems that the Australian government’s argument — and the argument made by governments in France and Germany, among other countries — is that while publishers have an easy way to not allow Google to index or use their content (the robots.txt file, etc.) they have no choice but to fork over their news because Google’s dominant market position makes it suicide not to do so. But at the same time, its dominance in advertising means the traffic it sends them is worth less and less. A Catch-22 if you will. Any truth to that argument?

Jeff Jarvis: They’re not “forking over their news.” That’s like saying if you take my picture you steal my soul. Publishers are benefitting tremendously from Google and Facebook sending them people — audience, users, potential members or subscribers, consumers, call them what you will. In any rational market, publishers would be paying platforms the way we used to have to pay newsstands. Only Google decided from the first not to sell links in search proper and thus they never created a market value for links. For platforms to do publishers this favor of sending them potential customers, they need to give users a preview with headlines or snippets. We all know that! Indeed, I did research years ago that found the larger the sample, the better the performance of the link; our content is our best ad.

Advertising is indeed going down. We made that bed, too. We in mass media created the attention-based advertising market that the platforms now also use, except they have more data so their ads perform better. I spent years trying to convince news publishers to create means to generate more first-party data with the mechanisms to store, analyze, and use it and I got nowhere because publishers insisted on relying on their old, mass-media ways: plain, old CPM.

And now that publishers are retreating behind paywalls, your argument on their behalf loses some oomph. Google started Subscribe with Google to help them with subscription campaigns, including giving publishers data about best prospects. Sampling is critical — it is the only way — to get subscribers. But now publishers are cutting off their noses to spite their conversion.

Mathew Ingram: Thanks Jeff. You and I both know how difficult things are for media organizations worldwide, including in Australia. Isn’t it better to have a flawed law that compels huge corporations to fund journalism in however roundabout a way, rather than have no one funding them at all?

Jeff Jarvis: Call me a cynic, but this won’t fund journalism. In many cases it will fund hedge fund owners. Have you seen any assurance from the media companies that the money they receive from Google will fund incremental work in reporting and investigation? There is no transparency on the amounts they receive. Will there be any transparency on the use of proceeds?

As you know, my friend, I get hives at the notion of government interference — even if well-intentioned — in speech and particularly in journalism; it’s very American of me. In the Australian case, we have politicians negotiating on behalf of publishers who should be watchdogs with their focus trained on these very officials. We also have big institutions — platforms and government — deciding which news outlets should get money and which should not (see: France).

And I return to the question of entitlement. If countries want to get more tax revenue from companies, should they target a particular industry: the net? If they decide to do that, who is to say that news should be the beneficiary? Why not instead benefit the communities news has harmed, lo many generations? Why not instead fund education or health care or internet access for the poor? Why fund hedgies?

Finally, I fear this money will only delay the inevitable at news companies: that is, death. We have seen that comfort only makes news companies lazy in their ways. Yes, we need to sustain journalism. But entitlement, protectionism, and blackmail are not sustainable models for that future.

Mathew Ingram: Thanks, Jeff. We are just about out of time, so one last question. It’s really easy! I definitely agree with you that news companies have blown a lot of opportunities over the years when it comes to the internet, and publishers have lined their own pockets instead. And I might even agree that the Australian code is a back-door way of funding journalism, when an outright tax would be a fairer approach. But if none of these things were to happen, where would that leave the industry? What happens when tens of thousands of news outlets cease to exist or are so poor they can barely function? How do we solve that problem as a society?

Jeff Jarvis: For years, at Newsgeists and Perugia and other such chummy venues, I have told folks from Facebook, Twitter, and especially Google that rather than their money, I wish they would give us the attention, perspective, experience, and challenge of their best and brightest. I wish we would start not with what news was (God didn’t design the newspaper) but with what society needs: better information, yes, but also ways to connect communities, to make strangers less strange, to debate constructively, to listen to each other, to join in a respectful, informed, and productive public conversation. They consistently demurred and said, “Oh, no, we don’t want to be in the position of telling news companies what to do.” Instead, they gave us Instant Articles and AMP; they worked hard to find homes for what we already did rather than pushing us to rethink and reinvent journalism in a new reality to address society’s problems. They succumbed to the blackmail of our bullies and paid the biggest among us. That is no way to invent our future together.

The big lesson of the last four years and especially the last year for me in my nation is that journalism has failed us. The election of Trump — that that could happen — is evidence against us. The fact that #LivingWhileBlack and #BlackLivesMatter as well as #MeToo were revelatory and not long since reported in mass media is an indictment of us. That the inequity of health in this country in the face of pandemic had not been known and dealt with is our guilty plea. That to get traffic we allow extremists and nuts to set the agenda rather than the needs and lives of everyday Americans is an unforgivable sin. So pardon me but I do not worship at the altar of the pressroom. I want to see us reinvent journalism around old needs and new opportunities. I want to see us collaborate with other fields and disciplines: anthropology to explain communitIes, neuroscience and psychology to explain cognition, ethics and philosopHy to guide us, history and humanities to inform us. I have a long-term vision for journalism. I just fear I am too old to see how this will turn out.

Mathew Ingram: Thanks, Jeff. And thanks again for taking the time to talk about this with us — much appreciated. Interesting times we live in!

Jeff Jarvis: Thanks, Mathew. Always a pleasure.

In league with Murdoch

February 15, 2021 by Jeff Jarvis
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(Here is an opinion piece I wrote in Australia’s Crikey. I had offered it to The Guardian. Here is a related piece from Crikey editor-in-chief Peter Fray.)

I love The Guardian. It has long been my most trusted news source worldwide. I have been honoured to write for and work with this grand institution. So I am sorely disappointed that The Guardian is dancing with the devil, Rupert Murdoch, in backing his legislation, Australia’s News Media Bargaining Code, for it would ruin the web for the rest of us.

The Code is built on a series of fallacies. First is the idea that Google and Facebook should owe publishers so much as a farthing for linking to their content, sending them audience, giving them marketing. In any rational market, publishers would owe platforms for this free marketing, except that Google at its founding decided not to sell links outside of advertisements. The headlines and snippets the platforms quote are necessary to link to them, and if the publishers don’t want to be included, it is easy for them to opt out.

Second, the major media companies of Australia — Murdoch’s News Corp., Fairfax’s Nine Entertainment and, yes, The Guardian — are not beggars in Oliver Twist’s poor house, as they would have us believe. They will survive.

Third, let us be clear that no matter what happens in this political drama, Rupert Murdoch — as ever — wins. Either Murdoch gets paid by Google and Facebook, or as threatened, Facebook bans news from its news feed and Google pulls out of Australia. Since Murdoch and Fairfax own almost all the media brands in the nation, they’ll be fine. Any media startup that dreams of competing with Australia’s media oligopoly will be unable to find a hold in the market. Small companies in many sectors will suffer. Users will suffer. I predict that the politicians who made this happen at Murdoch’s behest will suffer once citizens realize what they must do without. But Murdoch won’t.

What worries me most is what the Code would do to the internet, worldwide. As The Guardian reported, Sir Tim Berners-Lee himself, the man who invented the web, said the Code would break the web. The precedent of having to pay for the privilege of linking to someone is antithetical to the core ethic of the web: that the edges finally win over the power at the centre.

In the United States, where I work, it is only because of the web and its architecture of the link — as well as social media and its hashtags — that we have finally heard the stories of #BlackLivesMatter and #LivingWhileBlack and #MeToo from voices too long excluded from mass media, run by old, white men (who look like me). Finally, the net challenges the old mens’ hegemony.

No wonder Murdoch does everything he can to cripple the internet and its proprietors, cashing in his political capital — conflict of interest be damned — to buy protectionist legislation to favour his companies against his competitors in hopes of winning in Parliament or blackmailing publishers into paying to stop this political process. That is precisely what both Google and Facebook are doing in beginning to pay publishers for their articles, and I’m unhappy with them, too, for setting a precedent I consider dangerous for the future of the net.

You may ask why I am so vitriolic about your native son, Australia. [In disclosure, I once worked for Murdoch as TV critic for America’s TV Guide. Also, the school where I teach has raised funds from Facebook and Google but I receive nothing from them.] My animus toward Murdoch comes from seeing his media company damage my family and my nation. Fox News brainwashed parents across the country. Donald Trump was the Frankenstein’s monster of Murdoch’s network. The 6 January riot at the U.S. Capitol might as well have been Murdoch’s garden party. Rupert Murdoch is the single most malign influence in democracy across the English-speaking world (and his influence spreads even wider now, as even formerly sensible Canada and the European Union are considering following Australia’s lead in killing the web with their carbon copies of the Code).

If Murdoch is the devil, The Guardian was the guardian angel come to battle him. That is why I am so disappointed to see The Guardian operate in league with Murdoch and Fairfax to favor the Code. I am equally concerned that The Guardian, as well as most news media lately, have turned dystopian in their coverage of the internet and technology. I am old enough to remember when they were optimistic, even utopian. But that is a discussion for another day, another beer.

I say this at the risk of my relationship with The Guardian, an affection that goes back many years. But as much as I love The Guardian, I love the internet even more.

Scissors and Murdoch’s cynicism

February 2, 2021 by Jeff Jarvis
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Just as he broke democracy, Rupert Murdoch is trying to break the internet with his protectionist legislation in Australia to force the platforms to “negotiate” and pay news publishers for the privilege of linking to them, giving them free marketing and audience.

Facebook is threatening to pull news out of its News Feed; Google is threatening to pull out of Australia entirely rather than break the net.

In researching the book I’m writing about the Gutenberg age, I’ve come to see just how cynical the Murdoch law is, for it conveniently ignores the roots of all newspapering, made with scissors and glue and each others’ content.

For about the first century, starting in 1605, newspapers were composed almost entirely of reports copied from mailed newsletters, called avvisi, which publishers promised not to change as they printed excerpts; the value was in the selecting, cutting, and pasting. Before them the avvisi copied each other by hand. These were the first news networks.

In the United States, the Post Office Act of 1792 allowed newspapers to exchange copies in the mail for free with the clear intent of helping them copy and publish each others’ news. In fact, newspapers employed “scissors editors” to compile columns of news from other papers.

In his excellent book, Who Owns the News?: A History of Copyright, Will Slauter tells of a reader coming across Benjamin Franklin Bache, Ben Franklin’s grandson, in 1790 as he put together an edition of the General Advertiser:

There was a great heap of newspapers laying on the table, and on the floor all about you, and you had in your hand a large pair of taylors’ [sic] shears, and there you cut out of other papers as much as you thought would fill yours…. And that’s the way you make money, and then you grumble and tell us how difficult it is for one to be a Printer.

Editors did not complain about being copied because they would copy in turn. The only thing that drove them nuts was not being credited.

In 1902, The Charlotte News set a trap for an unsuspecting scissors editor at a competing paper. The News ran a story about a gang of anarchists from Vladivostok planning to kill “all the prominent rulers of the globe.” (And you thought Q was new.) Police arrested the leader, one Count Robhgien Ruomorf Laetsew. Said The News in a next edition: “If the erudite scissors editor of The Herald had read the ‘story’ carefully, he might have noticed the name of the illustrious ‘Count’ was more understandable when read backward,” as “We steal from our neighbor.”

Note well that the first copyright laws — the Statute of Anne in England in 1710 and the U.S. Copyright Act of 1790 — did not include newspapers. Said Slauter of Congress: “There is no evidence to prove that lawmakers considered including newspapers in the copyright statute and then decided not to, but there is every reason to believe that granting copyright to newspapers would not have made sense to them. Copying is what enabled news to spread….” Not until 1909 in the U.S. did copyright cover newspapers, though even then there was debate as to whether it covered news articles, for they were the product of business more than authorship and it was still believed that the sharing of news was beneficial to the formation of public opinion.

The telegraph changed newspapers’ collegial ways as proprietors formed competing news service and one, the Associated Press, tried and for a time succeeded in court to promulgate a “hot news” doctrine that said the AP could enjoin others from reporting the facts of an event while its story still had market value. This is antithetical not only to the logic of copyright — that it protects only the treatment of information, not the information itself — and to the principles of an enlightened society. In the hot news ruling, INS v. AP, Louis Brandeis dissented:

An essential element of individual property is the legal right to exclude others from enjoying it. If the property is private, the right of exclusion may be absolute; if the property is affected with a public interest, the right of exclusion is qualified. But the fact that a product of the mind has cost its producer money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property. The general rule of law is, that the noblest of human productions — knowledge, truths ascertained, conceptions, and ideas — become, after voluntary communication to others, free as the air to common use.

Let us be clear that even without free mailed exchange of newspapers and scissors editors, every single newspaper and journalistic organization still depends for its life on using the work and words of others. Imagine if newspapers started charging each other for repurposing their reporting. Imagine if sources refused to talk to newspapers without payment for their expertise and time.

Yet today we have publishers on high horses acting as if God granted them copyright and that it should extend even to quoting snippets for the purpose of discussing and linking to the news online, in the process sending news organizations audience and customers — again, for free. Germany has its Leistungsschutzrecht, or ancillary copyright law, which was going to charge the platforms for snippets but came to naught when the publishers chickened out; Spain its link tax, which forced Google News out of the country, hurting only the journalists and the public; the EU its Articles 15 & 17 of the Copyright Directive.

And Australia has its Murdoch law. Let’s imagine it passes and Google pulls out of Australia. Murdoch won’t be hurt; he owns half the news brands in the country; people know where to find them. Without Google and without news in social media, startups and small sites would be hard pressed to get a foothold in the market to compete with Murdoch. Murdoch becomes even more powerful. Coincidence? Hardly.

But Murdoch, as ever, has a larger strategy, trying to undercut what he sees as his competitor, the net, the world around. Sir Tim Berners-Lee, the creator of the web, gave testimony to Australian legislators to remind them that “the ability of web users to link to other sites was ‘fundamental to the web’ and that the the proposed media code could break it because they risked setting a precedent that ‘could make the web unworkable around the world’.” Unintended consequence? Hardly.

Need I remind you that Rupert Murdoch is, as I said on the BBC, the single most malign influence in democracy in the English-speaking world. Yet even my old friends at The Guardian, caught up in their moral panic over the net, are aligning with the devil in his quest. Instead of collaborating with Murdoch I argue that we in journalism must clean our house and shame and shun Fox and SkyNews Australia.

Now Canada is threatening to copy Australia, with Heritage Minister Steven Guilbeault announcing — on social media, no less —that “we stand in solidarity with our Australian partners” and that “when facing the web giants, we must stand united.” How about standing united for the future of the net, freedom of expression, a diversification of news oligopolies, citizens, and the public conversation?

Google and Facebook are starting to pay news publishers in other countries. But let’s be honest: As I’ve said before, that is the fruit of blackmail, of news publishers cashing in their political capital to threaten platforms with protectionist legislation such as that in Australia to get pay-offs. This is no strategy for the future; it is publishers’ admission of defeat in adapting to the net and building that future themselves. All this pay-off money will do is delay the inevitable fall of their businesses. This is a perspective you will not read in the news because it’s critical of news publishers. It is a conflict of interest never revealed. [My disclosure: Facebook has contributed to projects at my school around news disinformation and quality.]

If you want to portray this as good guys against bad guys and wish to paint big tech platforms as the bad please keep in mind that the force against them is a worse guy. But my concern here is not for Murdoch’s or the publishers’ perfidy, cynicism, and hypocrisy. It is for the future of the net, which depends upon links, neutrality, and openness to bring its power to all the people not represented and not heard in old, mass media. The net is the antidote to their monopoly power and now they are attacking the net.

I gave an interview for the ABC in Australia outlining my fears about Murdoch’s impact on the net. You’ll find a tenth of what I said here.

Here comes the judge

January 29, 2021 by Jeff Jarvis
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The first decisions of Facebook’s independent Oversight Board make Facebook’s judgment look good by comparison. Who saw that coming?

The Board has in essence said that it is OK to insult Muslim men as a group — yet not Azerbaijanis — and that freedom of expression justifies spreading medical misinformation. How in any logic does that make for a better Facebook, a better internet, and a better world?

The problem is that the Oversight Board is interpreting Facebook’s community standards, which are intended to guide moderators and algorithms in their decisions on what posts to take down. The rules are not — as friend Jasper Jackson put it — fit for purpose to be used as the basis of interpretation and enforcement by a court of ultimate authority, the Board.

I have said again and again (and again and again and again) that Facebook — and other technology companies (and journalistic enterprises) — need to establish and be held accountable to Constitutions, Bills of Rights, North Stars (call them what you will) to act as a covenant of mutual obligation with users, customers, and the public, answering the fundamental question, “Why are we here?”

Because Facebook does not have that higher-level expression of principles, the Oversight Board is left to judge its moderation decisions against the company’s nitty-gritty statutes on one end, or on the other, overly broad concepts like “hate speech” and “human rights,” with nothing in between. The Board acted like Supreme Court strict constructionists without a Constitution to call upon, so it depended on the exact wording of statutes to set bad precedents that will make bad policy.

The Board said that criticizing Muslim men did not rise to the standard of “hate speech.” If only Facebook had a principle — an article in a Bill of Rights — that said it expected users to respect each other as individuals and as members of groups of many identities, then it would have been impossible, in my view, for Facebook, the Board, or the community of users to condone a post that says there is “something wrong with Muslims psychologically.” As the organization Muslim Advocates said: “Facebook’s Oversight Board bent over backwards to excuse hate in Myanmar — a country where Facebook has been complicit in a genocide against Muslims.”

As for the medical disinformation: The Board said that a post endorsing hydroxychloroquine as a COVID-19 treatment did not rise to Facebook’s standard of “imminent physical harm,” because one needs a prescription to get it. Good Lord. We saw in the United States how Donald Trump inspired people to get the drug — and ignore other precautions — risking the health of themselves and others. The Board properly criticizes Facebook for some of its guidelines being too broad. But in this case, the guideline is too specific and created a loophole that allowed the Board to require — require! — Facebook to post medical misinformation. The Board suggested Facebook could have taken other steps, like adding context — but unfortunately, experience and data have shown that fact-checks of misinformation tend to amplify the misinformation. This is not about free expression and debate; there are no two sides to this — medicine has spoken. This decision ill informs, ill serves, and endangers the public.

I am glad — relieved — that after the Board’s decisions, Monika Bickert, Facebook’s head of content policy, said the company would still stick by science: “We do believe, however, that it is critical for everyone to have access to accurate information, and our current approach in removing misinformation is based on extensive consultation with leading scientists, including from the CDC and WHO. During a global pandemic this approach will not change.”

The problem with much of this discussion about bad shit online is that it’s the bad shit that then monopolizes our attention. Look at the news: The Q conspirators are still getting much more attention on cable news, their messages amplified every day, while the Black women of Georgia who especially saved our election and our democracy are not heard (exactly what they feared and foretold: that they would be exploited for this victory and then their circumstances and issues would be ignored). This is what comes of a journalism that focuses on the bad and a debate — I say a moral panic — about the net that obsesses on the awful. Every intervention we see is to find something more to forbid until one day we’ll be done. Not. Thus Facebook’s community standards are expressed in the negative, as statutes, as commandments: Thou shalt not. What about: Thou shalt?

How could we express our expectations in the positive? If I could get a bunch of Facebook executives in a room with a whiteboard, I would start by asking them why Facebook exists. What is it here to do? How do you want its presence to make a positive influence in the world? How would you like people to treat each other? What might you expect them to accomplish? “A connected world is a better world” is fine and I agree (not everyone would), but that’s a bumper sticker, not a Constitution. I thus would press them to express Facebook’s raison d’être. At a less high-falutin’ level, I’d ask who Facebook wants in its garden party and how they should be expected to behave. Out of this discussion might come principles such as users being expected to treat each other with respect. And then I’d ask them what the company warrants to foster and support such an atmosphere. Perhaps out of that comes Facebook’s promise to follow science. Statutes — the community standards — should be based on these principles. Oversight Board decisions should call on these principles. Regulators should expect data from the company to hold it accountable for these principles (this is the basis of the regulatory framework proposed by a high-level working group of which I was a part and which I endorse).

But such a covenant does not exist. So users, moderators, engineers writing algorithms, the Board, regulators, and media are left to interpret and enforce a set of rules posted on the playground.

I now dread the Oversight Board’s upcoming decision on whether Facebook should reinstate Donald Trump. I fear they will call upon freedom of expression — even of a white-supremacist authoritarian ruler inciting violence and rebellion to tear down the sacred institutions of a democracy — and have little more to go on than Facebook’s vague description of what it may do in cases of incitement and violence. I further fear how other heads of state will use this decision, even if Facebook does not, as a precedent. As I said in an earlier post, I am concerned that Germany, the EU, the UK, and most worryingly Poland are contemplating forcing platforms to carry their speech. I will repeat: Compelled speech is not free speech.

I wish to stop a cycle of reaction: user does something new and bad; Facebook reacts by creating a rule against it; the next time a user does something similar a moderator reacts by taking it down; the user reacts by appealing to Facebook and the Board; the Board reacts by ruling according to the statute, and so on. Jane, stop this crazy thing.

Facebook has already reinstated the posts the Board ordered it to reinstate (including in another case about Hermann Goering quote and another with naked breasts in the context of cancer, which Facebook had already put back up). Facebook will then react, in turn, to understand how to enforce the Board’s enforcement of its statutes.

I hope instead that Facebook will use this opportunity to see the weakness of its community standards as the basis for governing the behavior of communities and users online and in society. I hope they will not just sit with someone like me in a room with a whiteboard but will call upon the communities to help draw up their own standards and will work with academics and civil society to imagine a better Facebook in a better world and the principles that would undergird that. I further hope that the Oversight Board will stand back and ask whether by ruling according to the letter of inadequate law it is making Facebook and the world better or worse. I hope for a lot.

Disclosure: Facebook has funded activities at my school regarding journalism and disinformation.