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Full Text of SB3591  103rd General Assembly

SB3591sam001 103RD GENERAL ASSEMBLY

Sen. Steve Stadelman

Filed: 5/21/2024

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 3591

2    AMENDMENT NO. ______. Amend Senate Bill 3591 by replacing
3everything after the enacting clause with the following:
 
4    "Section 1. Short title. This Act may be cited as the
5Journalism Preservation Act.
 
6    Section 5. Findings.
7    (a) A free and diverse fourth estate was critical in the
8founding of our democracy and continues to be the lifeblood
9for a functioning democracy.
10    (b) Every day, journalism plays an essential role in
11Illinois and in local communities, and the ability of local
12news organizations to continue to provide the public with
13critical information about their communities and enabling
14publishers to receive fair market value for their content that
15is used by others will preserve and ensure the sustainability
16of local and diverse news outlets.

 

 

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1    (c) Communities without newspapers lose touch with
2government, business, education, and neighbors. They operate
3without journalists working to keep them informed, uncover
4truth, expose corruption, and share common goals and
5experiences.
6    (d) Over the past 10 years, newspaper advertising has
7decreased 66%, and newsroom staff has declined 44%.
8    (e) Ethnic media has long been a distinctive genre of
9journalism and communications, informing, engaging, and
10advocating on behalf of communities underserved by both the
11for-profit and not-for-profit general media market. It plays a
12unique role in upholding the fourth estate in our democracy by
13facilitating cross-racial and cross-ethnic communications to
14facilitate social integration, promote civic engagement, and
15address inequalities among all of the underserved communities.
16    (f) Given the important role of ethnic media, it is
17critical to advance State policy that ensures their publishers
18are justly compensated for the content they create and
19distribute. An example is the historic preamble, "We Wish to
20Plead Our Own Cause," a document penned by the
21African-American journalist and abolitionist Samuel Cornish in
221827. It marked a significant milestone in the history of the
23Black press as it highlighted the urgent need for African
24Americans to have their own platform to voice their
25grievances, advocate for their rights, and challenge racial
26inequality. This call to action spurred the establishment of

 

 

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1numerous Black-owned newspapers and publications, solidifying
2the role of the Black press as a powerful tool for empowerment
3and social change, and laid the groundwork in our country for
4other ethnic media to plead their own cause.
5    (g) Quality local journalism is key to sustaining civic
6society, strengthening communal ties, and providing
7information at a deeper level that national outlets cannot
8match.
9    (h) When surveyed, 73% of adults in the United States say
10they have confidence in their local newspaper.
 
11    Section 10. Definitions. As used in this Act:
12    "Access" means to acquire, to crawl, or to index content.
13    "Advertising revenue" means revenue generated through the
14sale of digital advertising impressions that are served to
15customers in this State through an online platform, regardless
16of whether those impressions are served on websites or
17accessed through online or mobile applications.
18    "Covered platform" means an online platform that, at any
19point during a 12-month period, either:
20        (1) has at least 50,000,000 United States-based
21    monthly active users or subscribers on the online
22    platform; or
23        (2) is owned or controlled by a person that either
24    has:
25            (A) net annual sales in the United States or a

 

 

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1        market capitalization greater than $550,000,000,000,
2        adjusted annually for inflation on the basis of the
3        Consumer Price Index published by the United States
4        Bureau of Labor Statistics; or
5            (B) at least 1,000,000,000 worldwide monthly
6        active users on the online platform.
7    "Covered platform" does not mean an organization exempt
8from federal income taxation under Section 501(c)(3) of the
9Internal Revenue Code of 1986.
10    "Eligible broadcaster" means a person that:
11        (1) holds or operates under a license issued by the
12    Federal Communications Commission under 47 U.S.C. 301 et
13    seq.;
14        (2) engages professionals to create, edit, produce,
15    and distribute original content concerning local,
16    regional, national, or international matters of public
17    interest through activities, including conducting
18    interviews, observing current events, analyzing documents
19    and other information, or fact checking through multiple
20    firsthand or secondhand news sources;
21        (3) updates its content on at least a weekly basis;
22    and
23        (4) uses an editorial process for error correction and
24    clarification, including a transparent process for
25    reporting errors or complaints to the station.
26    "Eligible digital journalism provider" means an eligible

 

 

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1publisher or eligible broadcaster that discloses its ownership
2to the public.
3    "Eligible publisher" means a person that publishes a
4qualifying publication.
5    "News journalist" means a natural person who:
6        (1) is employed for an average of at least 30 hours per
7    week during a calendar year by an eligible digital
8    journalism provider; and
9        (2) is responsible for gathering, developing,
10    preparing, directing the recording of, producing,
11    collecting, photographing, recording, writing, editing,
12    reporting, designing, presenting, distributing, or
13    publishing original news or information that concerns
14    local, regional, national, or international matters of
15    public interest.
16    "Notifying eligible digital journalism provider" means an
17entity that has provided notice to a covered platform as
18described in Section 15 that the entity is an eligible digital
19journalism provider.
20    "Online platform" means a website, online or mobile
21application, digital assistant, or online service that:
22        (1) accesses news articles, works of journalism, or
23    other content, or portions thereof, generated, created,
24    produced, or owned by an eligible digital journalism
25    provider; and
26        (2) aggregates, displays, provides, distributes, or

 

 

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1    directs users to content described in paragraph (1) of
2    this definition.
3    "Qualifying publication" means a website, online or mobile
4application, or other digital service that:
5        (1) does not primarily display, provide, distribute,
6    or offer content generated, created, produced, or owned by
7    an eligible broadcaster;
8        (2) provides information to an audience in this State;
9        (3) performs a public information function comparable
10    to that traditionally served by newspapers and other
11    periodical news publications;
12        (4) engages professionals to create, edit, produce,
13    and distribute original content concerning local,
14    regional, national, or international matters of public
15    interest through activities, including conducting
16    interviews, observing current events, analyzing documents
17    and other information, or fact checking through multiple
18    firsthand or secondhand news sources;
19        (5) updates its content at least 52 weeks in a
20    calendar year;
21        (6) has an editorial process for error correction and
22    clarification, including a transparent process for
23    reporting errors or complaints to the publication; and
24        (7) meets any of the following criteria:
25            (A) generated at least $100,000 in annual revenue
26        from its editorial content in the previous calendar

 

 

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1        year;
2            (B) had an International Standard Serial Number
3        assigned to an affiliated periodical before submitting
4        notice to a covered platform under Section 15; or
5            (B) is owned or controlled by an organization
6        exempt from federal income taxation under Section
7        501(c)(3) of the Internal Revenue Code of 1986;
8        (8) has at least 25% of its editorial content
9    consisting of information about topics of current local,
10    regional, national, or international public interest; or
11        (9) is not controlled, or wholly or partially owned
12    by, an entity that:
13            (A) is a foreign power or an agent of a foreign
14        power, as those terms are defined in 50 U.S.C. 1801;
15            (2) is designated as a foreign terrorist
16        organization under 8 U.S.C. 1189;
17            (3) is a terrorist organization, as defined in 8
18        U.S.C. 1182;
19            (4) is designated as a specially designated global
20        terrorist organization under federal Executive Order
21        13224;
22            (5) is an affiliate of an entity described in
23        subparagraph (1), (2), (3), or (4); and
24            (6) has been convicted of violating, or attempting
25        to violate 18 U.S.C. 2331, 2332b, or 2339A.
26    "Representative" means a labor organization designated as

 

 

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1the exclusive bargaining representative of news journalists or
2support staff for the purposes of collective bargaining in
3accordance with State or federal law.
4    "Support staff" means a natural person who performs
5nonexecutive functions, including payroll, human resources,
6fundraising and grant support, advertising and sales,
7community events and partnerships, technical support,
8sanitation, and security.
 
9    Section 15. Notice requirements for journalism usage fee
10payments.
11    (a) On or before January 1, 2025, all eligible digital
12journalism providers that want to receive journalism usage fee
13payments under this Act shall submit notice to a covered
14platform as described in subsection (b). All eligible digital
15journalism providers that submit the notice shall receive
16journalism usage fee payments from covered platforms as
17described in Section 20 beginning no later than 30 days after
18the end of the arbitration process described in Section 25.
19Digital journalism providers may provide notice to a covered
20platform as described in subsection (b) after the initial
21arbitration has concluded; however, notice received from an
22eligible digital journalism provider after January 1, 2025,
23shall not prompt any adjustment to the percentage of
24advertising revenue that has previously been determined under
25the most recent arbitration proceeding conducted as described

 

 

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1in Section 25.
2    (b) The notice described in subsection (a) shall:
3        (1) identifies the eligible digital journalism
4    provider and the authorized representative of the eligible
5    digital journalism provider;
6        (2) certifies, not under penalty of perjury, that the
7    eligible digital journalism provider reasonably believes
8    that it is either an eligible broadcaster or an eligible
9    publisher; and
10        (3) identifies the root uniform resource locators for
11    the websites associated with the eligible digital
12    journalism provider's digital content.
13    (c) No later than 30 days after submitting a notice
14described in subsection (b), the eligible digital journalism
15provider shall distribute a copy of the notice to the news
16journalists and support staff that it employs and their
17representatives, if any, and publish a copy of the notice
18online in a text-searchable format.
19    (d) No later than 30 days after the deadline described in
20subsection (a), or after receiving a notice as described in
21subsection (a), the covered platform shall send a reply notice
22to the authorized representative identified in subsection (b)
23to acknowledge the receipt of the notice.
24    (e) A covered platform that receives as described in
25paragraph (b) may, within 30 days after receiving the notice,
26challenge:

 

 

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1        (1) the sufficiency of the notice; and
2        (2) the noticing party's qualification as an eligible
3    digital journalism provider.
 
4    Section 20. Compensation methods. A covered platform
5shall:
6        (1) annually compensate digital journalism providers
7    for accessing the websites of the digital journalism
8    providers, with the compensation annually adjusted for
9    increases in the Consumer Price Index for All Urban
10    Consumers for all items published by the United States
11    Department of Labor and annually distributed to the
12    digital journalism providers as follows:
13            (A) no less than 1% of this amount shall be paid to
14        digital journalism providers that would receive less
15        than $25,000 under paragraph (B), to be distributed
16        annually on a pro rate basis among those digital
17        journalism providers, in addition to the amount those
18        digital journalism providers would receive under to
19        paragraph (B); and
20            (B) proportionally by the number of news
21        journalists and, subject to Section 35, freelancers,
22        who, in the previous calendar year, were employed by
23        each qualifying publication for the purpose of
24        producing content in Illinois that was accessed by a
25        platform; or

 

 

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1        (2) participate in a final arbitration process as
2    described in Section 25 and fully pay the arbitration
3    award, if any, within 30 days after the award.
 
4    Section 23. Distributions.
5    (a) A covered platform shall make distributions as
6described in Section 20 either by:
7        (1) selecting an approved claims administrator. In
8    selecting an approved claims administrator the covered
9    platform shall ensure that the approved claims
10    administrator is well-qualified to perform the
11    distribution and has administered multiple settlements in
12    the State of Illinois that comply with complex civil
13    litigation class action settlement guidelines in at least
14    2 State or federal courts in Illinois. The costs of
15    selecting an approved claims administrator to administer
16    the distributions shall be in addition to the amount
17    established in Section 20.
18        (2) distributing payments to digital journalism
19    providers itself, the costs of which shall be in addition
20    to the amount specified in Section 20.
21    (b) A final arbitration award under Section 25 to a
22jointly participating group of digital journalism providers
23shall be distributed proportionally by the number of news
24journalists and, subject to Section 35, freelancers, who, in
25the previous calendar year, were employed by each qualifying

 

 

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1publication for the purpose of producing content in Illinois
2that was accessed by a covered platform.
 
3    Section 25. Arbitration.
4    (a) The percentage of the covered platform's advertising
5revenue remitted to notifying eligible digital journalism
6providers shall be determined as described in this Section.
7Eligible digital journalism providers shall jointly
8participate in the final offer arbitration process described
9in this Section with each covered platform to determine a
10single percentage of advertising revenue from which the
11distributions described in Section 23 will be allotted.
12    (b) Within 10 days after the receipt of the reply notice
13required by subsection (d) of Section 15, an eligible digital
14journalism provider may initiate, under Rule R-4 of the
15American Arbitration Association's Commercial Arbitration
16Rules and Mediation Procedures, a final offer arbitration
17against the covered platform for an arbitration panel to
18determine the percentage of the covered platform's advertising
19revenue remitted to the notifying eligible digital journalism
20providers.
21    (c) The arbitration procedure authorized by this
22subsection shall commence 10 days after the receipt of the
23reply notice described in subsection (d) of Section 15.
24    (d) The arbitration procedure authorized by this
25subsection shall be decided by a panel of 3 arbitrators under

 

 

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1the American Arbitration Association's Commercial Arbitration
2Rules and Mediation Procedures and the American Arbitration
3Association-International Centre for Dispute Resolution Final
4Offer Arbitration Supplementary Rules, except to the extent
5they conflict with this Section.
6    (e) The covered platform and the eligible digital
7journalism providers shall each pay one-half of the cost of
8administering the arbitration proceeding, including arbitrator
9compensation, expenses, and administrative fees.
10    (f) The arbitrators shall be appointed in accordance with
11the American Arbitration Association's Commercial Arbitration
12Rules and Mediation Procedures.
13    (g) During a final offer arbitration proceeding under this
14Section, all of the following shall apply:
15        (1) Eligible digital journalism providers and the
16    covered platform may demand the production of documents
17    and information that are non-privileged, reasonably
18    necessary, and reasonably accessible without undue
19    expense. Documents and information shall be exchanged no
20    later than 30 days after the date the demand is filed.
21        (2) Rules regarding the admissibility of evidence
22    under the American Arbitration Association's Commercial
23    Arbitration Rules and Mediation Procedures shall apply.
24        (3) Eligible digital journalism providers and the
25    covered platform shall each submit a final offer proposal
26    for the remuneration that the eligible digital journalism

 

 

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1    providers should receive from the covered platform for
2    access to the content of the eligible digital journalism
3    providers during the period under arbitration based on the
4    value that access provides to the platform. The final
5    offer proposals shall include backup materials sufficient
6    to permit the other party to replicate the proffered
7    valuation.
8        (4) A final offer proposal under this Section shall
9    not address whether or how the covered platform or any
10    eligible digital journalism provider displays, ranks,
11    distributes, suppresses, promotes, throttles, labels,
12    filters, or curates the content of the eligible digital
13    journalism providers or any other person.
14    (h) No later than 60 days after the date proceedings begin
15as described in subsection (c), the arbitration panel shall
16determine the percentage of the covered platform's advertising
17revenue remitted to notifying eligible digital journalism
18providers from a final offer from one of the parties without
19modification.
20        (1) In making a determination, the arbitration panel
21    shall:
22            (A) refrain from considering any value conferred
23        upon any eligible digital journalism provider by the
24        covered platform for distributing or aggregating its
25        content as an offset to the value created by that
26        eligible digital journalism provider, unless the

 

 

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1        covered platform does not automatically access and
2        extract information from an eligible digital
3        journalism provider's website;
4            (B) consider past incremental revenue
5        contributions as a guide to the future incremental
6        revenue contribution by any eligible digital
7        journalism provider;
8            (C) consider the pricing, terms, and conditions of
9        any available, comparable commercial agreements
10        between parties granting access to digital content,
11        including pricing, terms, and conditions relating to
12        price, duration, territory, and the value of data
13        generated directly or indirectly by the content
14        accounting for any material disparities in negotiating
15        power between the parties to those commercial
16        agreements;
17            (D) if submitted with a final offer proposal,
18        consider the eligible digital journalism provider's
19        previous compliance with Section 40, if applicable;
20        and
21            (E) issue a standard binding arbitration award of
22        the percentage of the covered platform's advertising
23        revenue remitted to notifying eligible digital
24        journalism providers.
25        (2) Any party to the arbitration proceeding may elect
26    to appeal the decision of the arbitration panel as

 

 

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1    described in subsection (j) on the grounds of a procedural
2    irregularity.
3    (i) If the covered platform and any eligible digital
4journalism providers have given notice under Section 15 reach
5a settlement in lieu of arbitration, the settlement shall not
6waive the eligible digital journalism provider's obligations
7as described in Section 40 and shall not settle for an amount
8other than the final offer proposals submitted by the parties
9as described in paragraph (3) of subsection (g).
10    (j) No fewer than 24 months after the end of an arbitration
11proceeding, any party to the proceeding may elect to restart
12the arbitration process.
 
13    Section 30. Non-retaliation.
14    (a) A covered platform shall not retaliate against an
15eligible digital journalism provider for asserting its rights
16under this Act by refusing to index content or changing the
17ranking, identification, modification, branding, or placement
18of the content of the eligible digital journalism provider on
19the covered platform.
20    (b) An eligible digital journalism provider that is
21retaliated against may bring a civil action against the
22covered platform.
23    (c) This Section does not prohibit a covered platform
24from, and does not impose liability on a covered platform for,
25enforcing its terms of service against an eligible journalism

 

 

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1provider.
 
2    Section 35. Funding for journalists and support staff.
3    (a) An eligible digital journalism provider shall spend at
4least 70% of funds received under this Act on news journalists
5and support staff employed by the eligible digital journalism
6provider, except that an eligible digital journalism provider
7with 5 or fewer employees shall spend at least 50% of funds
8received under this Act on news journalists and support staff
9employed by the eligible digital journalism provider.
10    (b) No later than 30 days after the end of an arbitration
11proceeding described in Section 25 or upon reaching a
12settlement in lieu of an arbitration proceeding, the eligible
13digital journalism provider shall provide notification in
14writing of its plan to comply with subsection (a) to the news
15journalists and support staff employed by the eligible digital
16journalism provider and any representatives of those news
17journalists or support staff.
18    (c) The eligible digital journalism provider's plan to
19comply with subsection (a) shall include a good faith estimate
20of the number of news journalists and support staff, if any,
21expected to be hired, details regarding proposed compensation
22adjustments, if any, and a disclosure if either hiring or
23compensation adjustments are not expected.
 
24    Section 40. Reporting requirements.

 

 

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1    (a) No later than one year after the end of an arbitration
2proceeding described in Section 25 or reaching a settlement in
3lieu of an arbitration proceeding, and each year thereafter,
4the eligible digital journalism provider shall compile a
5report that includes:
6        (1) an attestation as to whether the eligible digital
7    journalism provider has complied with subsection (a) of
8    Section 35;
9        (2) the text of the digital journalism provider's plan
10    to comply with subsection (a) of Section 35;
11        (3) the total number of journalism usage fees received
12    from covered platforms;
13        (4) the name of each covered platform paying the
14    eligible digital journalism provider a journalism usage
15    fee and a description of how the eligible digital
16    journalism provider spent the journalism usage fee
17    payment, including any amount of journalism usage fees
18    remaining unspent; and
19        (5) the total number of news journalists and support
20    staff employed by the eligible digital journalism
21    provider, including the number of news journalists and
22    support staff hired or terminated during the previous
23    year.
24    (b) No later than one year after the end of an arbitration
25proceeding described in Section 25 or reaching a settlement in
26lieu of an arbitration proceeding, and each year thereafter,

 

 

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1the eligible digital journalism provider shall publish a copy
2of the report described in subsection (a) online in a
3text-searchable format and provide a copy to the news
4journalists and support staff employed by the eligible digital
5journalism provider, any representatives of those news
6journalists or support staff, and the covered platforms paying
7journalism usage fees to the eligible digital journalism
8provider.
 
9    Section 45. Preservation of rights.
10    (a) Nothing in this Act shall be construed as amending or
11repealing the ability of an eligible digital journalism
12provider or a covered platform to seek a preliminary or
13permanent injunction or any other existing remedy at law or
14equity.
15    (b) This Act does not modify, impair, expand, or in any way
16alter rights pertaining to the federal Lanham Act (15 U.S.C.
171051 et seq).
18    (c) This Act does not abridge or impair rights otherwise
19reserved by news journalists, support staff, or their
20representatives according to applicable law or existing
21collective bargaining agreements.
 
22    Section 50. Severability. The provisions of this Act are
23severable. If any provision of this act or its application is
24held invalid, that invalidity shall not affect other

 

 

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1provisions or applications that can be given effect without
2the invalid provision or application.".