In deciding what to write about for this post I was not short of topics and material. I could have talked about how the Court of Justice of the European Union has, in one fell swoop, caused a headache of Captain Jack Sparrow-hangover proportions (more on him in a moment) for many businesses around Europe by invalidating the EU-US Privacy Shield. The decision in Data Protection Commissioner v Facebook Ireland Case C‑311/18 (aka Schrems II), has brought into question whether any transfers to the US can be valid, and has opened up the Binding Corporate Rules regime, which is used by some of the world’s biggest multinational groups, to challenge.

Alternatively, I could have discussed the ‘libel trial of the year’ between Johnny Depp and News Group Newspapers (John Christopher Depp II v News Group Newspapers Limited and Dan Wootton). In case you need reminding, Johnny Depp sued the publisher of the Sun newspaper, and its Executive Editor over an article it published online on the 27th April 2018 entitled “GONE POTTY: How can JK Rowling be ‘genuinely happy’ casting Johnny Depp in the new Fantastic Beasts film?” (the headline to this article was amended from: “GONE POTTY How can JK Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?”) and a similar article published in print the following day under the headline “How can JK Rowling be ‘genuinely happy’ to cast Depp after assault claim”. Depp claimed the articles were defamatory because they called him a ‘wife beater’ who was guilty of domestic violence against his former wife, the actress Amanda Heard.

Let us be honest though – we could all have been forgiven for forgetting that this was actually a libel trial between Depp and NGN – rather, it became the ‘Depp and Heard trial’, taking on the appearance of high-profile divorce proceedings that fast-descended into the very public airing of Depp’s and Heard’s toxic and destructive relationship, with both claiming they had been the subject of serious physical abuse at the hands of the other. Both sides wheeled out numerous witnesses to support their version of events, including family members, friends, staff and, in Depp’s case, we even heard from his former partners Winona Ryder and Vanessa Paradis (their witness statements were made available to the press even though they were not called to give evidence because they had been quoted in opening submissions). Forgot the A-list celebrities though, at one point even ‘faeces’ took centre stage in the trial (yes, you have read that correctly).  The Court heard evidence from Hilda Vargas, Depp’s housekeeper, who said she found “human faeces” on his bed in April 2016 (which the Court was shown pictures of – yes she had actually taken pictures of excrement on Johnny Depp’s bed – which is quite concerning when, at the time she found it, these proceedings would not have been contemplated – which begs a number of other unanswered questions). Rather disappointingly however, the mystery of the phantom defecator will remain a mystery. In suggesting that it would be unnecessary for him to make a decision about some of the less relevant parts of the evidence, Nicol J said: “I am struggling at the moment to find why I would have to make a decision as to who defecated in this bed” . The trial concluded, after 16 days, on the 28th of July. Judgment has been reserved and is not likely to be handed down until later in September or in October.

However, rather than using this opportunity to write about either of these cases in more detail, I have decided to discuss another toxic relationship, albeit one that has gone under the radar, yet is seriously concerning for the health of our democratic public sphere.

Ofcom’s most recent News Consumption Survey confirms that the Internet is now used by 65% of adults as a source of news (by way of comparison, it was 66% in 2019, and 64% in 2018). This increases to 79% for 16 to 24-year-olds (a 3% increase from 2019). In contrast, the survey tells us that newspapers are used by 35% of adults to obtain their news, falling from 38% in 2019 and 40% in 2018. This transition from print to online news consumption has fuelled a sharp decline in newspaper sales. According to The Cairncross Review, between 2008 to 2018 weekday national newspaper sales fell from 11.5 million to 5.8 million copies a day. During the same period, the drop in circulation for Sunday national newspapers was even greater, falling from 11.2 million copies per issue to less than 5 million. In a similar period (2007 to 2017) local and regional newspaper sales decreased from 63.4 million to 31.4 million per week.

This decline in circulation, and resulting loss of revenue from sales and advertising, has impacted upon the press’ ability to positively contribute to public discourse and the public sphere in a number of interrelated ways (for example, it has encouraged consolidation and the pooling of resources and has necessitated cost cutting measures such as the laying off of journalistic and non-journalistic staff). For this post I am going to focus on the press’ insidious relationship with online advertising and what this means for the public sphere.

The change to our news consumption habits has led to the press’ print advertising revenue falling from just over £1.8 billion in 2010 to £607 million in 2019. To the contrary, from 2007 to 2017 online advertising went from 16% to 48% (or £10.6 billion) of total UK advertising spend, and by 2019 it had reached £15.7 billion. However, rather than being able to take advantage of this online advertising bonanza, the press, it seems have been left out in the cold. By 2017 digital advertising expenditure with newspapers was £487 million, which equated to just 5 per cent of total online advertising spend. So where is all the money going? The answer to this question is ‘mainly Silicon Valley’ because, in 2019, Google and Facebook alone captured 78% of UK online advertising revenues.

The ‘superiority’ of Facebook and Google et al in the online advertising market means that newspapers are competing for an increasingly smaller pot of advertising income. This has created a ‘clickbait culture’ which has even made it into popular culture (bear with me here). In the latest series of Supergirl, CatCo Worldwide Media, where Supergirl works as a Pullitzer Prize winning journalist, is taken over by a technology company that wants to ‘monetise its journalism’ by only publishing stories that generate revenue. Supergirl is told by her new boss, Andrea Rojas, that “it’s all about the clicks” and that she wants “watercooler journalism”. This might be a comic book TV series but, unfortunately, unlike DC’s superheroes it is far from fictional.

The Cairncross Review tells us that this increased competition for diminishing advertising revenue has led to newspapers such as The Guardian, The Sun, the Independent and the Daily Mail using ‘clickbait’ to attract more readers to compensate for their lost income. Worryingly, Cairncross heard evidence that this has encouraged the sensationalisation of news content, and journalists and publishers to favour clickbait to generate a higher number of clicks,making them more attractive to online advertisers (remember “it’s all about the clicks”!). This practice has been particularly harmful to local and regional newspapers, who are unable to compete with the scale and reach of their national counterparts. Indeed, according to one submission to Cairncross from a local journalist: ‘[The online advertising market]…forces us into either “clickbait” headlines or content. There will always be more stories about “WAGS” or TV shows because they guarantee clicks. Local council reports do not.’

Clickbait has not, however, guaranteed the long-term financial success of the press. Far from it in fact. This has driven newspapers to mining valuable user data to at least try to compete with online platforms. But, because of the sophisticated ways that these platforms accumulate and utilise data, newspapers are fighting a losing battle. Again, it seems the biggest losers are local press, as their ability to increase advertising revenues in this way is limited by their smaller and less influential audiences, and by not having the financial and technological resources to monetise audience data. Ultimately, this inability to compete in the digital arena means that it likely that investment in high-quality, yet expensive and time-consuming journalism, will continue to diminish.

Furthermore, this reliance on digital advertising has not just encouraged clickbait and lower quality ‘mass-market’ journalism. The need for newspapers to produce content that appeals to mass audiences and is therefore more attractive to advertisers, results in the production and consumption of the same type of content which means that minority or alternative voices, or content that is simply less likely to appeal to larger numbers, are likely to become increasingly marginalised.

Although it is not as volatile as Depp and Heard’s relationship, and despite there being no excrement in sight (at least literally), our transition from print to online news consumption has created a relationship between the press and online advertising that is concerning for the scope of the public sphere. Indeed, the dangers that the relationship presents to the functioning of our democracy were summed up by the Competition & Markets Authority in its Online platforms and digital advertising report where, within the context of the impact of digital advertising on the press, it noted the ‘wider social, political and cultural harm’ that is symptomatic of the ‘decline of authoritative and reliable news media’ and ‘the decline of the local press which is often a significant force in sustaining communities.’

It looks like the press needs a superhero (but it is probably best to call Supergirl rather than Captain Jack Sparrow)!

Dr Peter Coe, Lecturer in Law, School of Law, University of Reading; Research Associate, Information Law and Policy Centre, Institute of Advanced Legal Studies, University of London; Editor-in-chief of Communications Law.

This post appeared on Inforrm and will appear as the Editorial in the December issue of Communications Law and is published here with kind permission.