Bill Text: CA AB886 | 2023-2024 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: California Journalism Preservation Act.
Spectrum: Moderate Partisan Bill (Democrat 4-1)
Status: (Engrossed) 2023-07-07 - In committee: Set, first hearing. Hearing canceled at the request of author. [AB886 Detail]
Download: California-2023-AB886-Amended.html
(a)For purposes of this title, the following definitions apply:An (1) On or before February 1, 2024, all eligible digital journalism provider that submits a providers that want to receive usage fee payments pursuant to this title shall submit notice to a covered platform pursuant to subdivision (b)
(b). Those eligible digital journalism providers that submit the notice shall receive journalism usage fee payments from that covered platform platforms pursuant to Section 3273.63 beginning not more than ____ 30 days following the end of the arbitration proceeding
process described in Section 3273.64. ____ 30 days of having received the notice, challenge both of the following: provider and maintaining or enhancing the production and distribution of news or information that concerns local, regional, national, or international matters of public interest.
provider.3273.67.
Bill Title: California Journalism Preservation Act.
Spectrum: Moderate Partisan Bill (Democrat 4-1)
Status: (Engrossed) 2023-07-07 - In committee: Set, first hearing. Hearing canceled at the request of author. [AB886 Detail]
Download: California-2023-AB886-Amended.html
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Amended
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May 30, 2023 |
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Amended
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April 27, 2023 |
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Amended
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March 23, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 886
| Introduced by Assembly Member Wicks (Coauthors: Assembly Members Lowenthal and Essayli) |
February 14, 2023 |
An act to add Title 21 (commencing with Section 3273.60) to Part 4 of Division 3 of the Civil Code, relating to civil law.
LEGISLATIVE COUNSEL'S DIGEST
AB 886, as amended, Wicks.
California Journalism Preservation Act.
Existing law generally regulates online platforms, including by requiring, on a semiannual basis and as specified, a social media company to submit to the Attorney General a terms of service report that includes, among other things, the current version of the terms of service of the social media platform.
This bill, the California Journalism Preservation Act, would require, within an unspecified number of 10 days of the close of each month, a covered platform, as defined, to remit a journalism usage fee payment to each eligible digital journalism provider, as defined, that submits to the covered platform a certain notice that is
notice. Under the bill, the journalism usage fee payment would be equal to a percentage, as determined by a certain arbitration process, of the covered platform’s advertising revenue generated during that month multiplied by the eligible digital journalism provider’s allocation share, as defined, for that month. The
This bill would require the notice described above to, among other things, certify, not under penalty of perjury, that the eligible digital journalism provider reasonably believes that it is either an eligible broadcaster, as defined, or an eligible publisher, as defined. The bill would authorize a covered platform that receives that notice to,
platform, within an unspecified number of
30
days of having received the notice, to challenge the sufficiency of the notice and or the noticing party’s qualification as an eligible digital journalism provider. The
This bill would prohibit a covered platform from retaliating against an eligible digital journalism provider for asserting its rights under the act by refusing to index content or changing the ranking, identification, modification,
branding, or placement of the content of the eligible digital journalism provider on the covered platform. The bill would require an eligible digital journalism provider to spend at least 70% of funds received pursuant to the act on news journalists
and support staff employed by the eligible digital journalism provider and maintaining or enhancing the production and distribution of news or information that concerns local, regional, national, or international matters of public interest. provider.
This bill would require, no later than one year after the end of an arbitration proceeding or a settlement, and each year thereafter, the eligible digital journalism provider to compile a report containing, among other things, the number of usage fees received from covered platforms, the name of each covered platform paying it a usage fee, and how it spent the usage fee payment. The bill would also require the
eligible digital journalism provider at those times to publish a copy of the report online and to provide it to the news journalists and support staff it employs and the covered platforms paying the fees. The bill would state that its provisions are severable.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
This act shall be known as the California Journalism Preservation Act.SEC. 2.
The Legislature finds and declares all of the following:(a) A free and diverse fourth estate was critical in the founding of our democracy and continues to be the lifeblood for a functioning democracy.
(b) Every day, journalism plays an essential role in California and in local communities, and the ability of local news organizations to continue to provide the public with critical information about their communities and enabling publishers to receive fair market value for their content that is used by
others will preserve and ensure the sustainability of local and diverse news outlets.
(c) Communities without newspapers lose touch with government, business, education, and neighbors. They operate without journalists working to keep them informed, uncover truth, expose corruption, and share common goals and experiences.
(d) Over the past 10 years, newspaper advertising has decreased 66 percent, and newsroom staff have declined 44 percent.
(e) Given the important role of ethnic media, it is critical to advance state policy that ensures their publishers are justly compensated for the content they create and distribute. An excellent example is the historic preamble, “We Wish
to Plead Our Own Cause,” a document penned by the African American journalist and abolitionist Samuel Cornish in 1827. It marked a significant milestone in the history of the Black press as it highlighted the urgent need for African Americans to have their own platform to voice their grievances, advocate for their rights, and challenge racial inequality. This call to action spurred the establishment of numerous Black-owned newspapers and publications, solidifying the role of the Black press as a powerful tool for empowerment and social change, and laid the groundwork in our country for other ethnic media to plead their own cause.
(e)
(f) Quality local journalism is key to sustaining civic society, strengthening communal ties, and providing information at a deeper level that national outlets cannot match.
(f)
(g) Seventy-three percent of United States adults surveyed said they have confidence in their local newspaper.
SEC. 3.
Title 21 (commencing with Section 3273.60) is added to Part 4 of Division 3 of the Civil Code, to read:TITLE 21. Journalism Usage Fees
3273.60.
(a) “Access” means to acquire, to crawl, or to index content.
(b) “Advertising revenue” means revenue generated through the sale of digital advertising
impressions that are served to customers in the state through an online platform, regardless of whether those impressions are served on internet websites or accessed through online or mobile
applications.
(c) “Allocation share” means the percentage of a covered platform’s journalism usage fees that an eligible digital journalism provider is entitled to receive for a particular month computed by dividing the value derived pursuant to paragraph (1) by the value derived pursuant to paragraph (2).
(1) The total number of the covered platform’s internet web pages displayed or presented to California residents during the month that link to, display, or present the eligible digital journalism provider’s news articles, works of journalism, or other content, or portions thereof.
(2) The total number of the covered platform’s internet web pages displayed or presented to California residents during the
month that link to, display, or present any eligible digital journalism provider’s news articles, works of journalism, or other content, or portions thereof.
(d) (1) “Covered platform” means an online platform that at any point during a 12-month period meets either of the following criteria:
(A) The online platform has at least 50,000,000 United States-based monthly active users or subscribers on the online platform.
(B) The online platform is owned or controlled by a person with either of the following:
(i) United States net annual sales or a market capitalization greater than five hundred fifty billion dollars ($550,000,000,000), adjusted
annually for inflation on the basis of the Consumer Price Index published by the United States Bureau of Labor Statistics.
(ii) At least 1,000,000,000 worldwide monthly active users on the online platform.
(2) “Covered platform” does not mean an organization exempt from federal income taxation pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986.
(e) “Eligible broadcaster” means a person that meets all of the following criteria:
(1) The person holds or operates under a license issued by the Federal Communications Commission under Subchapter III (commencing with Section 301) of Chapter 5 of Title 47 of the United States Code.
(2) The person engages professionals to create, edit, produce, and distribute original content concerning local, regional, national, or international matters of public interest through activities, including conducting interviews, observing current events, analyzing documents and other information, or fact checking through multiple firsthand or secondhand news sources.
(3) The person updates its content on at least a weekly basis.
(4) The person uses an editorial process for error correction and clarification, including a transparent process for reporting errors or complaints to the station.
(f) “Eligible digital journalism provider” means an eligible publisher
or eligible broadcaster that discloses its ownership to the public.
(g) “Eligible publisher” means a person that publishes a qualifying publication.
(h)“Network station” means a television broadcast station, including a translator station or terrestrial satellite station that rebroadcasts all, or substantially all, of the programming broadcast by a network station that is owned or operated by, or
affiliated with, one or more television networks.
(i)
(h) “News journalist” means a natural person who meets both of the following criteria:
(1) The person is employed for an average of at least 20 30 hours per week during a calendar quarter by the eligible digital journalism provider.
(2) The person is responsible for gathering, developing, preparing, directing the recording of, producing, collecting, photographing, recording, writing, editing, reporting, designing, presenting, distributing, or publishing original news or information that concerns local, regional, national, or international matters of public interest.
(j)
(i) “Notifying eligible digital journalism provider” means an entity that has provided notice to a covered platform pursuant to Section 3273.61 that the entity is an eligible digital journalism provider.
(k)
(j) “Online platform” means an internet website, online or mobile application, digital assistant, or online service that does both of the following:
(1) Accesses news articles, works of journalism, or other content, or portions thereof, generated, created, produced, or owned by an eligible digital journalism provider.
(2) Aggregates, displays, provides, distributes, or directs users to content described in paragraph (1).
(l)
(k) “Qualifying publication” means an internet website, online or mobile application, or other digital service that meets all of the following criteria:
(1) The internet website, online or mobile application, or other digital service does not primarily display, provide, distribute, or offer content generated, created, produced, or owned by an eligible broadcaster or television network. broadcaster.
(2) The internet website, online or mobile application, or other digital service provides information to an audience in the state.
(3) The
internet website, online or mobile application, or other digital service performs a public information function comparable to that traditionally served by newspapers and other periodical news publications.
(4) The internet website, online or mobile application, or other digital service engages professionals to create, edit, produce, and distribute original content concerning local, regional, national, or international matters of public interest through activities, including conducting interviews, observing current events, analyzing documents and other information, or fact checking through multiple firsthand or secondhand news sources.
(5) The internet website, online or mobile application, or other digital service updates its content on at least a weekly basis.
(6) The internet website, online or mobile application, or other digital service has an editorial process for error correction and
clarification, including a transparent process for reporting errors or complaints to the publication.
(7) The internet website, online or mobile application, or other digital service meets any of the following criteria:
(A) The internet website, online or mobile application, or other digital service generated at least one hundred thousand dollars ($100,000) in annual revenue from its editorial content in the previous calendar year.
(B) The internet website, online or mobile application, or other digital service had an International Standard Serial Number assigned to an affiliated periodical before January 1, 2024.
(C) The internet website, online or
mobile application, or other digital service is owned or controlled by an organization exempt from federal income taxation pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986.
(8) The internet website, online or mobile application, or other digital service has at least 25 percent of its editorial content consisting of information about topics of current local, regional, national, or international public interest.
(9) The internet website, online or mobile application, or other digital service is not controlled, or wholly or partially owned by, an entity that meets any of the following criteria:
(A) The entity is a foreign power or an agent of a foreign power, as those terms are defined in Section 1801 of
Title 50 of the United States Code.
(B) The entity is designated as a foreign terrorist organization pursuant to Section 1189 of Title 8 of the United States Code.
(C) The entity is a terrorist organization, as defined in Section 1182 of Title 8 of the United States Code.
(D) The entity is designated as a specially designated global terrorist organization under federal Executive Order 13224.
(E) The entity is an affiliate of an entity described in subparagraph (A), (B), (C), or (D).
(F) The entity that has been convicted of violating, or attempting to violate, Section 2331, 2332b, or 2339A of Title
18 of the United States Code.
(l) “Representative” means a labor organization designated as the exclusive bargaining representative of news journalists or support staff for the purposes of collective bargaining in accordance with applicable state or federal law.
(m) “Support staff” means a natural person who performs nonexecutive functions, including payroll, human resources, fundraising and grant support, advertising and sales, community events and partnerships, technical support, sanitation, and security.
3273.61.
(a)(2) Digital journalism providers may provide notice to a covered platform pursuant to subdivision (b) after the initial arbitration has concluded; however, notice received from an eligible digital journalism provider after February 1, 2024, shall not prompt any adjustment to the percentage of advertising revenue that has previously been determined pursuant to the most recent arbitration proceeding conducted pursuant to Section 3273.64.
(b) The notice described in subdivision (a) shall meet all of the following criteria:
(1) The notice identifies the eligible digital journalism provider.
provider and the authorized representative of the eligible digital journalism provider.
(2) The notice certifies, not under penalty of perjury, that the eligible digital journalism provider reasonably believes that it is either an eligible broadcaster or an eligible publisher.
(3) The notice identifies the root uniform resource locators for the internet websites associated with the eligible digital journalism provider’s digital content.
(c) Not later than 30 days after submitting a notice described in subdivision (b), the eligible digital journalism provider shall distribute a copy of the notice to the news journalists and support staff it
employs and their representatives, if any, and publish a copy of the notice online in a text-searchable format.
(c)
(d) Not later than 30 days after receiving a notice the deadline described in paragraph (1) of subdivision (a), or after receiving a
notice pursuant to paragraph (2) of subdivision (a), the covered platform shall send a reply notice to the authorized representative identified in subdivision (b) to acknowledge receipt of the notice.
3273.62.
A covered platform that receives a notice pursuant to Section 3273.61 may, within(a) The sufficiency of the notice.
(b) The noticing party’s qualification as an eligible digital journalism provider.
3273.63.
(a) (1) For each month, a covered platform shall track and record, for each eligible digital journalism provider that submits a notice pursuant to Section 3273.61, the total number of the covered platform’s internet websites that link to, display, or present that eligible digital journalism provider’s news articles, works of journalism, or other content, or portions thereof, and that the covered platform has displayed or presented to California residents.(2) For each month, a covered platform shall use the data collected pursuant to paragraph (1) to calculate the allocation share for each notifying eligible digital journalism provider.
(b) Within ____ 10 days of the close of each month, a covered platform shall remit a journalism usage fee payment to each notifying eligible digital journalism provider that is equal to a percentage, determined pursuant to Section 3273.64, of the covered platform’s advertising revenue generated during that month multiplied by the eligible digital journalism provider’s allocation share for that month.
(c) If an eligible digital journalism provider fails to comply with Section 3273.67, a covered platform may withhold usage fee payments until the eligible
digital journalism provider has provided a copy of the report described in subdivision (a) of Section 3273.67 to the covered platform and has published a copy of the report online pursuant to subdivision (b) of Section 3273.67.
3273.64.
(a) The percentage of the covered platform’s advertising revenue remitted to notifying eligible digital journalism providers shall be determined pursuant to this section. Those eligible digital journalism providers shall jointly participate in the final offer arbitration process described in this section with each covered platform to determine a single percentage of advertising revenue from which future monthly allocation shares will be allotted.(b) Eligible digital journalism providers may initiate, pursuant to Rule R-4 of the American Arbitration Association’s Commercial Arbitration Rules and
Mediation Procedures, a final offer arbitration against the covered platform for an arbitration panel to determine the percentage of the covered platform’s advertising revenue remitted to the notifying eligible digital journalism provider. providers.
(c) The arbitration procedure authorized by this section shall commence 10 days after the receipt of the reply notice required by
subdivision (c) (d) of Section 3273.61.
(d) The arbitration procedure authorized by this section shall be decided by a panel of three arbitrators under the American Arbitration Association’s Commercial Arbitration Rules and Mediation Procedures and the American Arbitration Association-International Centre for Dispute Resolution Final Offer Arbitration Supplementary Rules except to the extent they conflict with this section.
(e) The cost of administering the arbitration proceeding, including arbitrator compensation, expenses, and administrative fees, shall be shared equally between the covered
platform and the eligible digital journalism provider.
providers.
(f) The arbitrators shall be appointed in accordance with the American Arbitration Association’s Commercial Arbitration Rules and Mediation Procedures.
(g) During a final offer arbitration proceeding under this section section, all of the following shall apply:
(1) (A) Eligible digital journalism providers and the covered platform may demand the production of documents and information that are nonprivileged, reasonably necessary, and reasonably accessible without undue expense.
(B) Documents and information described in subparagraph (A) shall be exchanged not later than 30 days after the date the demand is filed.
(2) Rules regarding the admissibility of evidence applicable in federal court shall apply.
(3) Eligible digital journalism providers and a the covered platform shall each submit a final offer proposal for the remuneration that the eligible digital journalism provider
providers should receive from the covered platform for access to the content of the eligible digital journalism providers during the period under arbitration based on the value that access provides to the platform, which platform. The final offer proposals shall include backup materials sufficient to permit the other party to replicate the proffered valuation.
(4) A discussion or final offer under
pursuant to this section shall not address whether or how the covered platform or any eligible digital journalism provider displays, ranks, distributes, suppresses, promotes, throttles, labels, filters, or curates the content of the eligible digital journalism providers or any other person.
(h) (1) Not later than 60 days after the date proceedings commence begin pursuant to subdivision (c), the arbitration panel shall determine the percentage of the covered platform’s advertising
revenue remitted to notifying eligible digital journalism providers from a final offer from one of the parties without modification.
(2) In making a determination under pursuant to paragraph (1), the arbitration panel shall do all of the following:
(A) Refrain from considering any value conferred upon any eligible digital journalism provider by the covered platform for distributing or aggregating its content as an offset to the value created by that eligible digital journalism provider.
provider, unless the covered platform does not automatically access and extract information from an eligible digital journalism provider’s internet website.
(B) Consider past incremental revenue contributions as a guide to the future incremental revenue contribution by any eligible digital journalism provider.
(C) Consider the pricing, terms, and conditions of any available, comparable commercial agreements between parties granting access to digital content, including pricing, terms, and conditions relating to price, duration, territory, and the value of data generated directly or indirectly by the content accounting for any material disparities in negotiating power between the parties to those commercial agreements.
(D) Consider the eligible digital journalism provider’s previous compliance with Section 3273.66, if applicable.
(D)
(E) Issue a binding, reasoned determination of the percentage of the covered platform’s advertising revenue remitted to notifying eligible digital journalism providers.
(3) Any party to the arbitration proceeding may elect to appeal the decision of the arbitration panel to a second
arbitration panel on the grounds of a procedural irregularity.
(i) If the covered platform and the eligible digital journalism providers reach a settlement in lieu of arbitration, the settlement shall not waive the eligible digital journalism provider’s obligations pursuant to Section 3273.66 and shall not settle for an amount other than the final offer proposals submitted by the parties pursuant to paragraph (3) of subdivision (g).
(j) No fewer than 24 months after the end of an arbitration proceeding, any party to the proceeding may elect to reinitiate the arbitration process.
3273.65.
(a) A covered platform shall not retaliate against an eligible digital journalism provider for asserting its rights under this title by refusing to index content or changing the ranking, identification, modification, branding, or placement of the content of the eligible digital journalism provider on the covered platform.(b) An eligible digital journalism provider that is retaliated against may bring a civil action against the covered platform.
(c) This section does not prohibit a covered platform from, and does not impose liability on a covered platform
for, enforcing its terms of service against an eligible journalism provider.
3273.66.
(a) An eligible digital journalism provider shall spend at least 70 percent of funds received pursuant to this title on news journalists and support staff employed by the eligible digital journalism(b) No later than 30 days after the end of an arbitration proceeding described in Section 3273.64 or reaching a settlement in lieu of an arbitration proceeding, the eligible digital journalism provider shall provide notification in writing of its plan to comply with subdivision (a) to the news journalists and support staff employed by the eligible digital journalism provider and any representatives of those news journalists or support staff.
(c) The eligible digital journalism provider’s plan to comply with subdivision (a) shall include a good-faith estimate of the number of news journalists and support staff, if any, expected to be hired,
details regarding proposed compensation adjustments, if any, and a disclosure if either hiring or compensation adjustments are not expected.
3273.67.
(a) No later than one year after the end of an arbitration proceeding described in Section 3273.64 or reaching a settlement in lieu of an arbitration proceeding, and each year thereafter, the eligible digital journalism provider shall compile a report that includes all of the following:(1) An attestation as to whether the eligible digital journalism provider has complied with subdivision (a) of Section 3473.66.
(2) The text of the digital journalism provider’s plan to comply with subdivision (a) of Section 3473.66.
(3) The total number of usage fees received from covered platforms.
(4) The name of each covered platform paying the eligible digital journalism provider a usage fee and a description of how the eligible digital journalism provider spent the usage fee payment, including any amount of usage fees remaining unspent.
(5) The total number of news journalists and support staff employed by the eligible digital journalism provider, including the number of news journalists and support staff hired or terminated during the previous year.
(b) No later than one year after the end of an arbitration proceeding described in Section 3273.64 or reaching a settlement in lieu of an arbitration proceeding, and each year thereafter, the eligible digital journalism provider shall publish a copy of the report described in subdivision (a) online in a text-searchable format and provide a copy to the news
journalists and support staff employed by the eligible digital journalism provider, any representatives of those news journalists or support staff, and the covered platforms paying usage fees to the eligible digital journalism provider.
This
3273.68.
(a) This title does not modify, impair, expand, or in any way alter rights pertaining to Title 17 of the United States Code or the Lanham Act (15 U.S.C. 1051 et seq.).(b) This title does not abridge or impair rights otherwise reserved by news journalists, support staff, or their representatives according to applicable law or existing collective bargaining agreements.
