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Policy / DCN perspectives on policy, law, and legislative news surrounding digital content

Avoid the hype. Focus on policy for 2022.

November 18, 2021 | By Jason Kint, CEO – DCN @jason_kint

From political races to red carpet award shows and global sports competitions, there are very few “franchises” that aren’t being stretched longer and longer to capitalize on the public’s interest. We find ourselves once again at the time of year when industry prognosticators offer their curated lists, social media hot takes, and opinion pieces in an attempt to memorialize the most important events of 2021 and to make predictions for 2022.

In tech and internet policy circles, this cycle seems ironic, given that forecasts are delivered daily – often several times a day, depending on the latest news cycles. But as we head into the final stretch of 2021, I have a few thoughts about how we need to avoid the distractions and stay focused on the one big change likely to occur in the new year.

Reality check 

To start, I’ll set the table on what I am skeptical about focusing on as we move forward: anything “metaverse” or “creator economy.” And I’ve got some good reasons to hope that, as we head into a new year, we don’t repeat the mistakes of the past.

Amidst the current hype around virtual worlds, augmented reality has certainly emerged as a powerful tool. And it is entirely possible that virtual reality will have practical applications beyond gaming (and not akin to never-quite-there 3D TV).

However, I feel compelled to remind everyone how the pivot to video became an industry obsession. That massive shift was not because of consumer demand; it was driven by Mark Zuckerberg’s 2016 prediction that nearly everything on his kingmaker platform would be video within five years.

So much has happened in the ensuing five years, not the least of which has been a steady and escalating series of revelations of how utterly deceiving this particular CEO and his company have been. And, unsurprisingly (at least in retrospect), we learned that this prediction was at least partially built on a Facebook deception. And, while we can ask ourselves why we had so many years when Facebook said “jump” and publishers and marketers blindly responded, “how high?” – perhaps the most enduring and meaningful lessons are learned from mistakes.

Facebook is not alone in the self-serving prophecy business though. Google’s Accelerated Mobile Pages also became an industry obsession, not because it was in the consumers’ best interests as Google claimed. Rather, it was simply a function of another industry-take-all-platform shaping the market to its liking. As we recently learned in unsealed antitrust allegations, it was a means for Google to bolster its advertising interests by slowing down competition

Creative control 

The hype cycle is also obsessed with the “creator economy.” There is an absolute flurry of innovation in providing platforms for individual creators. Though this isn’t entirely new. Google’s YouTube, for example, has both inspired and capitalized on it for ages. The same can be said more recently about TikTok.

Yes, it is very exciting to watch. However, these creator models are essentially comprised of typical vendor services: subscriptions, newsletters, distribution and, more recently, audio services. It’s not a coincidence that much of the investment and press hype—bordering on industry obsession—can be tied back to Facebook or its board of directors. Don’t forget that the company has its own Substack-like “creator platform,” Bulletin. Neither the hype nor the investment is surprising, though, given Facebook’s longstanding interest in disrupting media institutions.

What you should really be watching in 2022 

The most important industry story of 2022 will continue to be the at-times dull, but critically important, accountability around antitrust and data policy. We can thank Facebook and Google for adding a sprinkle of excitement to these conversations through whistleblowers, code names (Project NERA, Bernanke, Jedi Blue, and Poirot to name a few) and improperly filed redactions. As an increasing number of privacy laws come into effect, regulators may want to consider more Star Wars-inspired naming conventions to spice things up a bit.

Names notwithstanding, we are going to see regulation continue to intensify next year. In the near term, Europe appears set to finalize two landmark regulations: the Digital Markets Act and Digital Services Act. If these prevail, Europe will be first to have a purpose-built “gatekeeper” law for the 21st century.

The Digital Markets Act addresses the imbalance in negotiating power in a networked economy that results in both individuals and businesses lacking autonomy and choice, which harms the public at large. It recognizes that no individual publisher or consumer can truly opt-out of Google’s search engine that scrapes the entirety of our lives via the internet. Almost as impossible to avoid are Facebook, Instagram, and WhatsApp, which connect people to communities. And then there’s the binary mobile and app store marketplace, delivered by Apple’s iOS or Google’s Android.

With this level of market power, publishers and consumers have little to no choice in negotiating rights to their data and consent with these powerful gatekeepers. The European approach mirrors the work of Australia’s competition and consumer protection regulator — and it looks like U.S. authorities are headed in the same direction. In a market dominated by superpowers, regulation follows to govern how that market power is used or abused.

The Digital Services Act will then modernize the rules for content liability and possibly how advertising can be targeted when based on surveillance capitalism by companies that, in many cases, consumers don’t even intend to interact with. The DSA and DMA have two main goals: First, to create a safer digital space in which the fundamental rights of all users of digital services are protected. And second, to establish a level playing field to foster innovation, growth, and competitiveness, both in the European Single Market and globally. Not many can argue against these goals, it’s only a matter of whether the legislation will achieve them.

Bringing it home

In the U.S., California’s CCPA is currently the strongest data protection law for digital advertising stateside, followed closely by Colorado’s new law. However, as state and federal laws are negotiated to carry the baton, all eyes and minds are on Europe. There is an acute concern about making sure to address market power and create a sustainable path for publishers going forward, one that isn’t determined for us by industry gatekeepers like Facebook, Google and Apple. This likely requires laws that directly integrate competition and data policy rather than developing rules in the same room as the industry titans, which has failed to result in anything fair if even legal.

So, as we look forward, let’s not repeat the mistakes of the past. When the dominant digital power players press their self-serving agendas, we do not have to buy in. We don’t have to follow their lead. We don’t have to amplify their messages. And for goodness’ sake, we do not need to pivot.

Instead, we should stand our ground, steady on the bedrock of consumer trust and responsible business practices. If 2021 showed us anything, it is that consumers value great content. It’s what we do. And we will continue to do it well. Nothing meta about that.