Australia’s own media law isn’t helping news consumers either

In a news conference in Ottawa earlier this month, Heritage Minister Pablo Rodriguez sought to provide context for the tech industry’s reaction to the recently passed C-18, which outlines a process for media organizations to arrange deals with tech companies for ad revenue.

Since the bill was enacted, both Meta and Google have taken steps to remove Canadian news articles from their platforms, claiming that the bill is “unworkable” for their products. While Google has demonstrated a willingness to sit down with the government, Meta has thus far refused. In response, the Canadian federal government, without the support of Prime Minister Justin Trudeau’s Liberal Party, has said it will remove all ads on both platforms.

Minister Rodriguez called the tech platforms “bullies” for removing news links and accused them of “threatening democracy” itself. Citing Meta and Google’s profits, NDP MP Peter Julian said it was “time for them to give back” by turning over some of their money to local and regional newspapers, and online publishers.

Bloc MP Martin Champoux suggested using yet more tax money to push advertisers to spend on traditional platforms. “The government should do more. Perhaps even more incentives to advertisers to leave Meta’s platform and return to traditional sponsorships,” he said.

In a separate interview, Prime Minister Trudeau kicked it up a notch by claiming that Facebook’s actions were an “attack” on Canada akin to WWII.

Since then, the government has already outlined its own concessions to soften the blow, but the point remains.

There are plenty of articulate critiques of C-18, but the most concerning part of this entire process is that the template they’re drawing from is also massively flawed.

In name, the law is about saving journalism. Practically, it grants permission to a cartel of news organizations and corporations to force extractive payments from (mostly US) tech firms that have significant online platforms. And large media companies stand to gain the most.

This regulatory playbook is a familiar one in the Anglosphere, as we know from Australia’s News Bargaining Code of 2021 and similar attempts in the US Senate and the State of California.

The Australian example is a key talking point for Rodriguez and Liberal supporters of C-18, but its success is rather opaque.

If anyone asks the Australian government or peeks at their reports compiled by the Treasury, they claim it a “success to date,” owing to the 30 individual agreements struck between news publishers and the tech titans of Google and Meta.

But the number of agreements is the only metric we have, and it’s not surprising to see large mega corporations topping the list, including US entertainment conglomerates like Paramount Global and Rupert Murdoch’s News Corp, but also Nine Entertainment, owned by the family of now-deceased Australian media tycoon Kerry Packer (a mini-Murdoch, if you will).

What about small, regional outlets that bills like the Australian News Bargaining Code and Canada’s C-18 portend to help?

At least two academic articles have examined this impact, and both concluded that large corporate media entities gained significantly while smaller newsrooms were unable to capture gains at the same rate. “It is yet to be seen how the NMBC contributes to maintaining a sustainable business model for public interest journalism, other than continued payments from platforms,” said one group of researchers.

The Australian Treasury report notes, “it is acknowledged that many smaller news businesses would face significant challenges in participating in negotiations with digital platforms.”

Chris Krewson, executive director of LION Publishers, an association of US local news publishers analyzing the law, sums it up more bluntly: 

He wrote that there’s “no evidence that the dollars that flowed actually meant more journalism,” later pointing out that despite the $200 million infusion of cash from Big Tech, Australian media outlets still struggled immensely during the pandemic, and local outlets especially found the task of even entering negotiations to be a “lengthy and expensive process”.

For those smaller publishers and media outlets struggling and unable to strike their own deals, the Australian government signals it may need to extract yet more money for future subsidies: “Ultimately, as noted earlier, small news businesses may be better assisted by other types of Government support.”

In that case, it seems Australia will need to dole out yet more subsidies, tax schemes, and government financing to support the journalism industry. Why should Canada be any different?

What C-18 and similar laws attempt to do is to organize, coordinate, and force a business model for a particular industry. But in doing so, it is giving an upper hand to large media conglomerates with a decaying business model that will now forever grow addicted to deals with tech firms.

One could even argue that Canada’s government is harming the open internet itself by forcing online firms to pay traditional media. This, all the while platforms like Substack, YouTube, Patreon, and many others are better serving news consumers who are directly paying media outlets they enjoy and benefit from.

In slowing the inevitability of bankrupt legacy media firms, the government cannot endorse bankrupt ideas to save them.

Yaël Ossowski is deputy director of the Consumer Choice Center.

Confronting Slanted Journalism on Talc Litigation

When does investigative reporting cross the line into subjective advocacy? Can the coverage of high-stakes civil litigation improperly tip the scales of the legal process toward one of the parties involved? What duty of transparency do reporters owe the public when active litigants are selectively providing much of the source material and narrative framing for stories about ongoing cases?

These are just some of the troubling questions that are raised by the reporting in outlets like Reuters and the New York Times on lawsuits involving talc products made by companies like Johnson & Johnson.

In cases with such large potential impact – on public health, investors, legal precedent, and reputation – the bar for standards like objectivity, accuracy, balance, and sourcing ought to be at its very highest. But instead of sober analysis, reporting on these cases often blows through those guidelines in headlong pursuit of garish and slanted pieces that might as well have been written by the publicists for plaintiff’s attorneys. Tough questions are one thing but willfully distorted reporting is something else, especially when it misleads the public about key elements and serves a hidden agenda that is being concealed from readers.

Let’s start with the simple and easily verified fact that the talc products have been tested for impurities repeatedly and exhaustively over and over again for decades by a laundry list of independent entities. Yet even that overarching truth gets mangled. Outlets like Reuters routinely wave it away with the rhetorical formulation that “Johnson & Johnson points to studies it says…” See the sleight of hand? Reuters misleads its readers to believe these reviews aren’t objectively and independently true. Instead, Reuters insinuates these are just interpretations made by the company.

That underhanded trick also enables reporters to avoid including any of the authoritative sources that affirmed the safety. Why rely on empirical evidence or consensus findings when there’s an outlier study with hypothetical conclusions that can be cited? That’s facile and it enables reporters to elide the central question that’s at issue: do the plaintiff’s claims have a hard scientific basis?

This kind of macro omission is often used in concert with narrower, specific omissions to create the appearance of controversy or ambiguity where there is none. Take one example: In a long article, Reuters notes that in the 1970s, a researcher claimed to find “a relatively small” amount of asbestos in J&J talc. But Reuters does not tell you he re-tested and found none. Independent microscopists also tested the same lot that the researcher used and found that he was mistaken in his findings and that the samples tested did not, in fact, contain asbestos.

This tilted framing is a variation on the idea of “false equivalence” that media ethicists have long lamented in public affairs reporting. The Flat Earth Society doesn’t deserve the primary or even equal voice in news reporting, that argument holds, because the contrary evidence is so overwhelming and obvious. Yet the outlandish claim that J&J has knowingly poisoned women and children for decades, targeting minorities especially, has not only been touted by Reuters and NYT but trumpeted by those outlets on social media and through their publicity departments.

Pretending that News is Breaking

Let’s look closer at how the Plaintiff’s attorney Mark Lanier has co-opted reporters at Reuters and the New York Times. In one recent example, Reuters reporter Lisa Girion took spoon-fed material from plaintiff’s attorneys claiming that Johnson & Johnson “knew for decades that asbestos lurked in its baby powder” and then touted it as “reported here for the first time.” But that’s false in two key ways. First, those memos actually reflect a diligent concern preventing the talc from being contaminated. Second, those memos aren’t newly discovered at all – they have been open exhibits in the public record at trials that took place months and sometimes years ago. The only revelation is that the plaintiff’s attorneys were able to co-opt Reuters into dressing them up when other news outlets had rightly discounted them.  

That deceptive technique of rehashing court exhibits as if they are breaking news was on display in yet another Reuters report that outlandishly declared Johnson & Johnson had “targeted” minorities as part of a malevolent scheme. But that allegation was actually rejected by the courts because of course advertising to specific demographic groups is an entirely routine and perfectly appropriate part of marketing. In fact, the ad industry has an entire group dedicated to this socially vital practice, called the Alliance for Inclusive & Multicultural Marketing. Even though it was deemed unfit for a court of law and legally irrelevant, the publicists for those trial lawyers simply rehashed the material for Reuters which happily parroted their argument.

The New York Times docuseries The Weekly also took the bait. Over the 27-minute episode, plaintiffs’ attorneys and experts are given more than 9 minutes of screen time, including Lanier dramatically staging a scene for reporters interviewing him in his Houston office. File boxes filled with documents from Johnson & Johnson are stacked with dramatic thuds in front of reporters. The ruse works. The New York Times reports Lanier’s theory as verifiably true. Johnson & Johnson’s representative is given just under 3.5 minutes to defend the product and every claim is questioned by reporters along the way. None of the hundreds of independent experts who have confirmed talc’s safety are interviewed. 

Publicity as a Legal Cudgel

But why do the trial lawyers put such an emphasis on influencing the media and driving a narrative? Bloomberg’s Joe Nocera (no softie on big business) explained part of the strategy in a recent column. “For decades, ever since the trial lawyers realized that if they acted in concert, they had a high likelihood of landing a big payday, even if the facts were not on their side. This has become the business model for the plaintiff’s bar.” Nocera added, “Once the lawyers have a product in their sights, the next step — and this is key – is to find not just a handful of people who believed they’ve suffered harm as a result of using the product. They also need tens of thousands of ‘victims.’ How do they find them? By advertising.”

That’s why the free publicity that’s being provided by Reuters and the New York Times is so essential. It allows them to solicit additional members of a class action and at the same time, it helps validate the claims of the complaint in the eyes of prospective jurors.

The best perk of all, however, is how the cheerleading from the national press puts downward pressure on a company’s stock price. That’s leverage the trial lawyers then use to strong-arm a financial settlement. The day after the first Reuters story appeared, the plaintiff’s attorney Mark Lanier appeared on CNBC to brag about how his help to the reporters had caused a $40 billion drop in the company market cap. “I think this litigation can be resolved for much less than $40 billion,” Lanier crowed. “So [the article] serves my purposes as a litigant to say, ‘yes, get their attention, keep driving the stock down.”

Tune out the Skeptics

It doesn’t take a seasoned media critic to spot the holes in the reporting or the half-baked legal theory that supports it. Each piece from Reuters and the New York Times on the talc litigation has been thoroughly eviscerated by numerous readers that have expertise in fields varying from epidemiology, oncology, and medical research.

The media is complicit in the scheme. Reporters are no longer objective as they are angling for financial benefits the same as the trial attorney. Unless dramatic steps in transparency are taken by Reuters and The New York Times, their coverage and claims should be dismissed as fast by the public as they are by the court.  

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