Public concern about the power of social media, search, and streaming platforms to shape and manipulate public discourse—along with their control over digital advertising—has recently been validated by a range of courts and competition authorities which have determined that several of these digital gatekeepers have outsized power. The dominance of online intermediaries in media markets and the broader information ecosystem underscores the need for balanced interventions that both preserve the public’s right to access public interest information and culture, and to ensure the viability of the sectors that produce this content.

Democratic societies have historically protected data access in the face of powerful communication intermediaries, and used public policy to protect or promote certain types of content (or content producers) that is deemed to be in the public interest.

More broadly, there is a long democratic tradition of balancing between private and public interests and regulating the market to ensure fair competition, as well as the provision of core public goods.

Must-carry laws have been around for decades. Historically, policymakers have recognized that some communications services are so fundamental to public discourse and information access that special regulatory intervention is warranted to ensure distribution and universal availability. Must-carry provisions emerged from the “essential facilities” doctrine, a concept rooted in antitrust law, which seeks to prevent dominant gatekeepers—such as telecoms or those with spectrum licences which are limited in number—from excluding or obstructing competitors. In some cases, a private corporation may hold a “natural monopoly,” or provide an essential platform for other businesses or users, like railroads or electricity, in which case lawmakers have opted to impose common carriage or must-carry provisions on those monopolies (such as United States railways in the 19th century, and telecoms in the 20th century).

Over the past century, regulators have been using so called “must-carry rules” to ensure diverse voices remained accessible on privately owned broadcasting platforms. From local broadcast requirements in the U.S., Japan, and South Africa to linguistic content protections in Canada, Taiwan, and across Europe, these provisions have a rich history of balancing private interests with public information and communication needs.

Must‑carry rules for specific content first emerged in the U.S. in the 1960s to protect local broadcasters from competition as a new technology platform—cable TV–grew in popularity. These rules aimed to ensure that people would continue to have access to local TV stations. Over the ensuing decades, must-carry laws have spread around the world as policymakers strove to address competition dynamics in their markets and to ensure pluralism as well as the availability and accessibility of public interest content like local news.

Given the importance that online platforms such as search, social media, and streaming have in the information ecosystem and the market dynamics that shape the visibility and viability of content industries such as journalism, it is clear that the current situation of letting dominant gatekeepers unilaterally decide what to carry and how to display (what prominence to give to) anything carried is not in the public interest.

Canada’s Online News Act was an attempt to ensure media viability, and to foster a healthy information ecosystem by confronting market imbalances, consistent with the principles of media freedom and pluralism. It compels platforms to pay news publishers, but does not establish must-carry obligations, which allowed Facebook and Instagram to ban news publishers from distribution to avoid paying usage fees. 

As Meta lobbies the Canadian government on the return of news to Facebook, policymakers should understand that must-carry approaches alone will not solve the challenges of disinformation and propaganda or fix the monopolized markets or broken economic structures of the news media. However, a must-carry approach to news on Meta could help promote pluralism, localism, and the democratic function of communication infrastructure when market forces alone might not achieve these objectives.

Dr. Courtney C. Radsch, who is based in Washington, D.C., is the director of the Center for Journalism and Liberty at the Open Markets Institute, and is a non-resident fellow at the Brookings Institution. Dr. Anya Schiffrin, who is based in New York City, is a senior lecturer at Columbia University’s School of International and Public Affairs, and is co-director of the Technology Policy and Innovation Concentration.

The Hill Times