For almost three years, Brazil has been discussing a bill to regulate social media platforms, known as the PL das Fake News [the Fake News Bill] (PL 2630/2020).
It has as its main objectives, according to its text, "the strengthening of the democratic process and the promotion of information diversity in Brazil" and "the defense of freedom of expression and the prevention of censorship in the online environment." The bill also includes an article about how digital platforms are going to remunerate news outlets.
In its current form, Article 38 of the bill provides for platforms to pay news organizations directly for the use of their content. The proposal aims to reward news outlets for losses caused by the advent of large digital platforms.
The way the law is currently written has prompted dissatisfaction. In an open letter published on March 30, the board of the Digital Journalism Association (Ajor, by its Portuguese acronym), a civil society that represents more than 100 Brazilian digital journalism initiatives, proposed changes in the text, stating that, in its current wording, only large media companies would benefit.
"The direct negotiation between media companies and digital platforms, without transparency about values and criteria, concentrates power in Big Tech itself and ends up benefiting large communication conglomerates. Medium and small news outlets often don’t sit at the table. When they do, they have much less bargaining power and negotiate in the dark," according to the letter.
Natalia Viana, Ajor's president, spoke with Latam Journalism Review (LJR) via videoconference to analyze the debate, explain the perspective of the association she presides over, and describe why she believes changes are necessary.
The day after Ajor's letter was published, the federal government presented its proposed changes to the bill, suggesting that remuneration for platforms also include cultural initiatives outside the scope of journalism, further complicating the debate.
The conversation is open. To media professionals and their researchers, Viana's invitation at the end of the interview remains: "It is up to journalists to help discuss and help think of solutions for the sustainability of journalism.”
The interview below has been edited for clarity and conciseness purposes.
What exactly is Ajor's proposal in relation to the Fake News bill?
Natalia Viana: We have been talking about the Fake News bill since last year, and we decided that we should close the issue and act specifically on article 38, because this is the article with the greatest potential to affect the future and sustainability of journalism — clearly, our main focus of action. After evaluating the bill, we decided that we support it and that it should be approved. And also that, within the bill, article 38 should not be approved as is, but rather with a mandatory payment to journalism.
There are, on the one hand, economic issues related to advertising, something that traditional media complain about. In this respect we have a slightly different view: The organizations that are part of Ajor would not exist without social media, they are fundamental to our foundation, to maintain and reach new audiences.
But we see that the platforms have helped create an environment of public debate polluted by misinformation. Since they are an oligopoly and mediate the relationship of all journalism with the public, they need to participate in the solution to the problem they have created.
So, if we talk about fighting fake news and remedying the disinformation issue, they need to help fight disinformation, to improve the information environment that exists in Brazil.
This can only be done in two ways. Either you fight fake news and have fact-checking, or you have more and better journalism. We believe that the law should be approved, but with a provision for payment from the platforms to journalism.
What are the disagreements in relation to the text?
That this payment should be made directly from the platforms to companies, as in Australia. Thus, a mechanism is created that privatizes a public problem. The problem of misinformation and the problem of financial shortages, of the lack of sustainability of journalism, is a social problem, a generational problem that needs to be solved. All over the world, several countries are starting to elaborate public policies, including funds, to support journalism initiatives, and something similar should happen in Brazil.
If you simply establish that there must be payments, without establishing criteria or transparency mechanisms, you simply favor a business-to-business negotiation.
This is one point. And the other point is that if we talk about strengthening Brazilian journalism, we will need to face the historical problem of media concentration. If you have a new digital media ecosystem, which is very well represented at Ajor, with a variety of very diverse media, you are going to have to support this ecosystem — and, in addition, expand the possibility of founding media where none exist. We have news deserts in half of the Brazilian cities.
So, we believe that this transfer mechanism must be done in a public way, with governance and transparency. That is why we defend that it should be done through a public sector fund. You are going to ask, "Ah, but how would that be, how is that going to work? And I answer: we don't have that answer, and we don't want to have that answer. This is not the time to have it, because we are bringing up for debate the possibility of this problem, which is a public problem for society, to be faced with a fund and a public policy. We want to bring all actors to this debate. Up until now, the most traditional newspapers were the ones that set the parameters for the payment to the platforms. Globo, for example, is very active, and they defend the private sector model, the direct payment model. We do not believe that this is the way to go. We believe that there should be government funding to pay for journalism, and the fund model should be left for later regulation. The issue should be the aim of a large public conversation, everyone has to engage in the debate. Traditional journalists, digital media, photographers, all actors.
Can you explain what the project is like in its current form? Who benefits from it?
The language of the latest bill, from late last year, says that there must be payment from social media to companies. It determines a direct payment, what is internationally called a bargaining mechanism. In Brazil, Google and Facebook, anticipating there would be regulation, have already established several commercial agreements with various media, through specific projects, such as Google Highlights, in which they pay these media annually to use their content in specific places. This is a way for you to pre-establish a commercial relationship with the companies. So, if we want to know how an adopted bargaining mechanism would work, this is a great example: Nobody knows how it works. All the companies that enter into this agreement with Facebook are required to sign an NDA [non-disclosure agreement], and they can't even say how much money they get. Nobody knows how much money they get, or where the money is spent, or if it is helping to strengthen and fund journalism, or if it is going into other areas. Both Google and Facebook have selected companies off the top of their heads without any public criteria. Nobody knows the criteria, and they have no transparency mechanism. No company is required to say, "I'm getting so much from Google, [and] it's going to this area.
And what would happen if this bargaining mechanism were institutionalized and became law?
As it stands now, it’s like a voluntary market. It’s possible that if a law forced the bargaining, these agreements would simply keep on happening. In addition, we know that there is a discrepancy in payment between big players, who have great economic power, and local and regional media, who end up earning much less. And for this, again, the criterion is absolutely up to the platforms. If you leave out a bargaining negotiation, the criteria will be in the platforms' hands, and the only ones that will have a chance to negotiate on equal terms, with more muscle, will be large communication groups, which have lots of lawyers. How is a smaller organization, which has, let's say, 10 people, going to be able to sit at the table with a bunch of lawyers from these platforms to negotiate? It won't. [The law] would simply reinforce the concentration that already exists in the Brazilian media.
In contrast to this, which actors do you think the resources should go to? Any specific profile?
I don't think the resources should go to any specific type of actor; I'm not advocating that resources go to one type of journalism or another. You have to understand what the needs of society are. So, if you look at the Canada Fund, which created the Canada Media Fund, they have, for example, a funding line for startups. They also have a funding line for people who speak languages that are not the dominant languages, so, for example, Indigenous language media in Brazil could be favored. Or, for example, there could be a line for media that work with Human Rights. All this has to be studied.
Are there examples in Brazil itself that could serve as an example for the management of this media fund?
Yes, in Brazil there are already funds that work very well and are good examples. A very positive example is the audiovisual sector fund. The audiovisual sector fund supported and fostered our cinema in this boom during the last 20 years, with several excellent productions, including several that almost reached the Oscars. This happened because of public policy. When you have a market that is deregulated, as is the case of the media market in Brazil, which gets worse with the platforms, and it creates distortions, you need public policy to revert these distortions. So, if you ask yourself, should the traditional media get in? Of course they should, and of course so should local media. Everybody should get in.
And what would the governance look like?
Again, we can look at the audiovisual sector fund. There should be a council that establishes clear criteria that are valid for all of Brazil, attending to some regional issues. This council should be made up of associations of varied media, television, radio, digital media, legacy media, [and] print media. Professionals too, and unions and associations, for example. It should also include civil society and government. With everyone, you form a governance mechanism, the more sectors represented, the better. Which sectors need to be represented there also needs to be discussed. Obviously, the public sector, but the judiciary can also be present. You need to have a body that is representative of the sector and of society, which is the one that benefits from journalism.
During its last administration, Brazil saw a great stripping of social participation mechanisms, such as in the environmental area. The audiovisual sector fund also suffered funding cuts under the Bolsonaro government. What can be done to protect the management of this council from an apparatus that could channel resources to government-friendly or docile news outlets that make propaganda posing as journalism? How could we create security mechanisms to prevent its political use?
The concern is absolutely legitimate, and frankly, I share it too. But this is not a good argument for privatizing the use of funds. It’s necessary to create better mechanisms. In the audiovisual sectoral fund, there was no favoring of friendly groups. The only thing that happened was that the resources dried up, and now the fund is going to be restarted. If we elect again an authoritarian president, like Bolsonaro, we run this risk, yes. It would be very good not to elect another president with these characteristics. But it is necessary to establish mechanisms that can at least curb these attempts. I think that, in spite of funds having dried up, the audiovisual sector's fund is resilient, so much so that it’s already coming back, in a positive way and with society's supervision. And, again, in governance and transparency mechanisms, the more social participation, the better. So much so that Bolsonaro's policy was precisely to do away with these councils. He discontinued the councils to then destroy the public policies. Now, ending the councils is a lot of work, isn't it? Neither the fund, nor any of the solutions, are free of problems. I just think, and I strongly believe, that the more transparency, the more governance and the more public participation there are in public programs, the less chance there is of them being biased.
On the last day of March, the government presented its additions to the fake news bill. The proposal calls for platforms to remunerate copyrighted content, including journalistic texts, music and film productions. How do you see these proposals regarding article 38 and the sustainability of journalism?
The government's proposal is completely different from everything that is being discussed. The previous article said there could be a payment for copyright. Then the government, under the influence of the Ministry of Culture, put in other cultural productions, including music, photography, and other things that are not journalism. This brings enormous confusion to the debate. That is, the government proposed not only to maintain payment via copyright, but to cultural goods that are not journalism. This concerns us a lot, mainly because you take the primacy of journalism out of this debate. Again, if the bill is about fake news, about regulating the conversation that is happening in society in order to defend democracy, journalism needs to be the centerpiece of this debate. It worries me that this government proposal removes the centrality of journalism.
And how are your advocacy efforts going?
Ajor now has a representative in Brasilia, and we have been talking to representatives of the traditional press, as well as politicians, other civil society organizations such as Fenaj (National Federation of Journalists), and other civil society actors that talk about digital rights, such as the Coalizão Direitos na Rede (CDR, or Coalition for Rights on the Internet). We have talked to many actors, and I can say that there is already a consensus, or almost a consensus, among the most relevant actors in the digital rights and freedom of expression debates, on the importance of the bill establishing mandatory payment to journalism. How this will be done should be discussed later and with more time.
And how has the engagement been with parliamentarians and representatives of the Executive?
We’ve had engagement, yes, especially with those who are involved in the issue. But we have also found, and this is a warning, many people who are not aware of the discussion, especially the issue of payment to journalism, which is important for any parliamentarian, for any member of society. More than not having input with parliamentarians, we see many parliamentarians who are not following. We are trying, precisely, to make many parliamentarians aware that this discussion is fundamental for the sustainability of journalism in the near future.
What does it signal the fact that the government has stripped away the exclusivity of channeling resources to journalism?
I think I have already answered that. But, in short, the concern is that we’ve started talking about something much broader, and not focusing on the need to defend journalism. We have to remember that if we have a democracy today, it’s because many journalists, including many journalists from the independent press, have been on the front lines all this time. What would Brazil be today if it weren't for fact-checkers? Where would Brazil be if it weren’t for Vaza Jato [Car Wash leaks]? What would it be without journalism, which gave information about COVID-19 when it was needed? Or local journalists who collected food for their communities during the pandemic? Journalists have worked hard to maintain our democracy.
How important for Brazilian journalism could a well-designed law be?
Nothing by itself will save journalism. This is our generation’s issue. We need to create mechanisms to boost the sector, and such mechanisms exist for all sectors of the economy. My mother wants to open a restaurant and has received support and training. If someone wants to open an office, a business, an industry, they have public support and guidance. In the case of the media, this does not exist, Brazil does not have a policy [to support journalism]. We at Ajor create our news outlets and run them with zero support. There is no government entity where I can go and say, "I'm writing a story on human rights in an area that nobody covers, what can I do?" In other words, we just want a policy for this economic sector that employs, that informs, and is a service, such as those that exists for various other sectors.
In terms of international examples, which do you consider positive, and which negative?
Australia and France made direct payments to companies. They were models that didn't work very well, precisely because they helped to concentrate on the big [news outlets]. That's within the regulatory model. But as for the use of funds, there are many interesting initiatives. In Austria, in Sweden, in Denmark. Italy also created a fund to support journalism in 2016. Each country has its own national characteristics, and follows its own model. For example, in Italy there is funding for traditional and print media, but also for specific digital media. In the Netherlands, they have launched an accelerator that is very cool. They provide not only funding but also training, both for journalism startups and for traditional media that want to convert to digital or launch new digital platforms.
Is there anything else you would like to say?
The most important thing is something I've been writing about since last year: Journalists traditionally become alienated, and are happily confined to their places of employment. But journalism has changed, and it's up to journalists to help discuss and think of solutions for its sustainability. It is a generational issue, and if even journalists are not interested in participating in this discussion, we cannot expect society to do so. We are in a moment of crisis in the industry, but it is a fundamental service to defend democracy. What frustrates me most is the little participation of journalists in the discussion.