In all industries, the digitalisation process is unstoppable. And it’s been the same in the written press, which has adapted its models and structures for the online market with great effort and speed. Each day, as an essential pillar of democracy, the media provides information in compliance with the rights to give and receive information proclaimed in Article 20 of the Spanish Constitution.
The Spanish media, shaken by a global crisis, has been struggling for years to make the large tech companies pay a fair price for content they do not invest in but indeed use and exploit economically. Readers access news created by the media through many entry points — the newspaper itself, a search engine, or a social network — but the majority of digital advertising remains with the global technology companies. According to some studies, the total amount of advertising in Spain is 2.5 billion euros, with Google having a market share of around 60%.
The European Union adopted the Directive on Copyright in the Digital Single Market in 2019, and the Spanish Government has just passed a draft law for its incorporation into national law in the Council of Ministers. The Copyright Directive grants authors and publishers of periodicals rights of reproduction and to make their content available to the public. As such, publishers and journalists have the right to receive a suitable share of the income that Internet search engines and aggregators receive for the use of their publications.
However, the text recently passed by the Spanish government shows a clear influence from the tech giants’ lobby, with their power clearly increased by the new regulation. Even more surprising is the support that some publishing groups have given to the draft law. Driven by the crisis, they have taken a ‘feast today, famine tomorrow’ stance by having a short-term vision that shows no regard, in terms of the medium and long term, for how this proposed regulation could jeopardise their editorial independence.
The new law will allow the media to individually negotiate a “fair” rate for content posted to news aggregators (Google, primarily), rather than doing this through a collective management entity, a traditional European model that has always sought to protect the weakest party. In this case, the media versus the monopolies of the all-powerful technological giants. In an enormous show of optimism, the draft law passed by the Spanish government has demanded “good faith and transparency” from the tech companies in the negotiations to be done, as well as updated information on how the platforms where news is published function.
The Spanish government has chosen to accept these private negotiations instead of establishing a legal rate that is fair and in accordance with uses and the market. A legal rate would not only comply with existing European and Spanish regulations, but would guarantee certain minimum revenues for all rights holders, publishers, and journalists, would promote the independence and pluralism of the media, and would guarantee a free process to build public opinion, which is essential to meet the standards of any quality democracy.
It should also be remembered that behind the media there are companies and workers, there are investments, talent and effort, there are publishers and journalists. The proper remuneration of their work is, of course, a matter of justice and rights, but also of their editorial independence and, thus, of the quality of democracy.
It is clear that payments for the exploitation of media content should not be arbitrarily determined by an algorithm whose workings are entirely controlled by the platforms and are opaque for the State, public opinion, and the publishers and authors themselves. The media’s individual agreements with search engines and aggregators would not only decimate their survival and the Spanish media model in the medium term, but the annual economic amounts they would receive would be much lower than what they would get with a legal rate and by maintaining a collective management system. A system, that is, which works and guarantees immediate revenues and collections that are done in a stable and lasting time frame, without being subjected to unilateral changes.
Democracies cannot allow giants like Google, thanks to private agreements, to become the guardians of the information that reaches citizens. No technology platform should be the main decision-maker for the prevalence of one piece of information or another thanks to its algorithms. As many media publishers recognise, it would be very disturbing if companies whose activity is outside the journalism profession became the guardians of global information. Ultimately, they will condition the process of the free shaping of public opinion.
When confronted with positions that are often simplistic if not naive, society and our politicians should realise just what is at stake. This crossroads goes far beyond the media, publishers, and journalists, and affects the right to be informed and our sovereignty as a country.
We are talking about justice, values, independence, and democracy. In this, as in other issues relating to the market and digital rights, governments and parliaments must take fully into consideration all that is at stake.