Former ACCC chair Rod Sims says Meta risking designation under NMBC

Former chair of the ACCC, Rod Sims has recommended Meta (formerly Facebook) be designated under the News Media Bargaining Code, in a report for the Judith Neilson Institute for Journalism and Ideas.

Sims was chair of the ACCC for 11 years between 2011 and 2022, and has been a key figure at the centre of the world-first media legislation. The report, his first work since departing the ACCC earlier this year, was produced in order to help other regulators and legislators around the world looking to implement similar legislation.

Sims presenting at the media diversity inquiry last year

In the report, Sims said then-Facebook “inexplicably let it be known that they have now stopped doing more commercial deals with news businesses, of the type envisaged by the NMBC”.

Sims called it “puzzling” Meta stopped negotiations without completing deals with, for example, SBS and The Conversation, “who clearly produce significant “core” news”.

Sims: It can be seen that Meta has done less deals than Google.

“Not doing deals with such organisations would not seem to align with the criteria for avoiding designation. Indeed, Facebook are clearly risking future designation under the NMBC,” wrote Sims.

Sims recommended “as things stand Facebook should likely be designated so the remaining deals that should be done get done”.

Sims said “despite SBS and The Conversation not getting deals with Facebook, and some others not getting deals at all”, the NMBC must be seen as a success, “albeit with some room for improvement”. He continued that the review of the code will consider such improvements, and Facebook “may well face future designation”, but that in his long public policy history “there are few new policies that so closely achieve their objective”.

Mumbrella understands SBS continues to seek a fair resolution with Facebook.

“There are marginal cases where it can be difficult to know where to draw the line between an eligible news media business and a business that it not eligible under the NMBC,” Sims continued. “When preparing the NMBC, and defining which media businesses would be eligible, the focus was on media that predominantly produced “core” news. That is, content that reports, investigates or explains:

  • issues or events that are relevant in engaging Australians in public debate and in informing democratic decision-making; or
  • current issues or events of public significance for Australians at a local, regional or national level.”

Sims concluded: “Those wishing to replicate but improve it needs to think carefully about whether what they are seeking to do will make good commercial deals between the news media businesses and the platforms more or less likely.”

The rest of the report responds to some of the criticism of the NMBC, as countries including Canada, France, the UK, US and Brazil are looking at following a similar path to the Code.

Earlier this year, more than 30 independent publishers stopped publishing for 24 hours in response to the outcome of Facebook’s Australian News Fund. Meta told publishers last year that it had stopped negotiating licensing deals, and encouraged publishers to apply to the funding program.

Meta is not under a legal obligation to enter into deals currently as it, nor any other digital platform, has been designated by the Treasurer under the news media bargaining code (the code). The ACCC estimated that the value of the deals struck thus far with both Meta and Google could potentially amount to over $200 million. If Meta were designated as a digital platform, the code would require it to do commercial deals with the entities that have been registered as news businesses by the Australian Communications Media Authority (ACMA).

With a new Treasurer this week, the landscape moving forward is currently unclear.


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