I 

115TH CONGRESS 

2D SESSION H. R. 5190 

To provide a temporary safe harbor for the publishers of online content 

to collectively negotiate with dominant online platforms regarding the 

terms on which their content may be distributed. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 7, 2018 

Mr. CICILLINE introduced the following bill; which was referred to the 

Committee on the Judiciary 

A BILL 

To provide a temporary safe harbor for the publishers of 

online content to collectively negotiate with dominant 

online platforms regarding the terms on which their content may be distributed. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Journalism Competi5 tion and Preservation Act of 2018’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 


dlhill on DSK3GLQ082PROD with BILLS
2 

•HR 5190 IH

1 (1) A free and vibrant press is essential to the 

2 health of our democracy. 

3 (2) Fair and competitive markets are integral 

4 to maintaining a thriving press that can meet the 

5 demands of consumers and an informed citizenry. 

6 (3) More and more Americans prefer to read 

7 news online. While some readers may go directly to 

8 a publisher’s website, many more find news through 

9 the use of one or more online platforms, such as 

10 search engines and social media websites. 

11 (4) Over the past decade, digital audiences for 

12 news publications have increased by over 200 per13 cent. Nevertheless, over that same time period, dig14 ital news publishers’ revenues have fallen by nearly 

15 half. 

16 (5) In the absence of the robust enforcement of 

17 the antitrust laws to ensure a free and open market18 place of ideas, some dominant platforms serve as a 

19 de facto gateway to all online content for many web 

20 users, wielding an enormous amount of control over 

21 how readers find and interact with content produced 

22 by the press. 

23 (6) Dominant platforms often are able to dic24 tate the terms on which a publisher’s content may 

25 appear on their platform, and some hold so much 


dlhill on DSK3GLQ082PROD with BILLS
3 

•HR 5190 IH

1 sway in the online ecosystem that they can control 

2 whether their users are able to find a creator’s con3 tent at all. 

4 (7) An entity with the power to dictate the 

5 terms of distribution of news has the power to dic6 tate the content of the news. 

7 (8) America benefits from, and depends upon, 

8 not only a free marketplace for goods and services, 

9 but also a free marketplace of ideas. 

10 (9) The antitrust laws were intended to and do 

11 provide both economic and civic benefits. 

12 (10) A central purpose of the antitrust laws is 

13 to promote and protect open markets, including 

14 those for the free and diverse press. 

15 (11) While antitrust exemptions are generally 

16 disfavored, should the application of the antitrust 

17 laws ever be applied in a manner that conflicts with 

18 their stated purpose—such as protecting the free 

19 and open marketplace of ideas online—it is the duty 

20 and prerogative of the Congress to resolve the con21 flict. 

22 SEC. 3. SAFE HARBOR FOR CERTAIN COLLECTIVE NEGO23 TIATIONS. 

24 (a) DEFINITIONS.—For purposes of this section: 

25 (1) The term ‘‘news content creator’’ means— 


dlhill on DSK3GLQ082PROD with BILLS
4 

•HR 5190 IH

1 (A) any print or digital news organization 

2 that— 

3 (i) has a dedicated professional edi4 torial staff that creates and distributes 

5 original news and related content con6 cerning local, national, or international 

7 matters of public interest on at least a 

8 weekly basis; and 

9 (ii) is commercially marketed through 

10 subscriptions, advertising, or sponsorship; 

11 and 

12 (B) provides original news and related con13 tent, with the editorial content consisting of not 

14 less than 25 percent current news and related 

15 content. 

16 (2) The term ‘‘Online Content Distributor’’ 

17 means any entity that— 

18 (A) operates a website or other online serv19 ice that displays, distributes, or directs users to 

20 news articles, works of journalism, or other con21 tent on the internet that is generated by third22 party news content creators; and 

23 (B) has not fewer than 1,000,000,000 

24 monthly active users, in the aggregate, of all of 

25 its websites or online services worldwide. 


dlhill on DSK3GLQ082PROD with BILLS
5 

•HR 5190 IH

1 (3) The term ‘‘antitrust laws’’ has the meaning 

2 given such term in subsection (a) of the first section 

3 of the Clayton Act (15 U.S.C. 12), and includes— 

4 (A) section 5 of the Federal Trade Com5 mission Act (15 U.S.C. 45) to the extent that 

6 such section applies to unfair methods of com7 petition; and 

8 (B) any State law, rule, or regulation that 

9 prohibits or penalizes the conduct described in, 

10 or is otherwise inconsistent with, subsection (b) 

11 of this section. 

12 (4) The term ‘‘negotiation period’’ means the 

13 period of time beginning on the date this Act goes 

14 into effect and ending 48 months later. 

15 (b) LIMITATION OF LIABILITY.—A news content cre16 ator shall not be held liable under the antitrust laws for 

17 engaging in negotiations with other news content creators 

18 during the negotiation period to collectively withhold con19 tent from, or negotiate with, an Online Content Dis20 tributor regarding the terms on which the news content 

21 creators’ news content may be distributed by the Online 

22 Content Distributor, if— 

23 (1) the negotiations with the Online Content 

24 Distributor— 


dlhill on DSK3GLQ082PROD with BILLS
6 

•HR 5190 IH

1 (A) are not limited to price and are non2 discriminatory as to similarly situated news 

3 content creators, and directly relate to the qual4 ity, accuracy, attribution or branding, and 

5 interoperability of news; and 

6 (B) pertain to terms that would be avail7 able to all news content creators; 

8 (2) the coordination among the news content 

9 creators is directly related to and reasonably nec10 essary for negotiations with an Online Content Dis11 tributor that are otherwise consistent with this Act; 

12 and 

13 (3) the negotiations do not involve any person 

14 that is not a news content creator or an Online Con15 tent Distributor. 

16 (c) RULE OF CONSTRUCTION.—Except as provided in 

17 this Act, this Act shall not be construed to modify, impair, 

18 or supersede the operation of the antitrust laws. 

Æ 


dlhill on DSK3GLQ082PROD with BILLS