Google says draft News Media Bargaining Code still unworkable

Google has responded to the Morrison Government’s News Media and Digital Platforms Mandatory Bargaining Code bill that was tabled in parliament last week.

The mandatory code makes Australia the first country in the world to force Facebook and Google to pay for news.

Google Australia and New Zealand managing director, Mel Silva said the legislation “falls far short of a workable code” and that there are “still serious problems that need to be worked through”.

The code forces Google and Facebook to pay to link to news articles. Google has been vocal in recent months with its objections to the code, while fellow target, Facebook has yet to issue a response.

According to Silva, this code fundamentally breaks how search engines work and is setting the groundwork to unravel the key principles of the open internet people use every day, “something neither a search engine nor anyone who enjoys the benefits of the free and open web should accept,” she added.

“As we have repeatedly stated, we do not object to a code that regulates relationships between publishers and platforms,” said Silva. “Nor do we object to paying publishers. We have committed over A$1.3 billion to news partnerships globally. But the details of the code matter, which is why we look forward to working with the Senate Committee, policymakers, and publishers to achieve an outcome that is in Australia’s interests and fair for all.”

Under the code, the Australian Communications and Media Authority (ACMA) will be tasked with deciding whether a news business is eligible to bargain with the digital platforms. If that bargaining process is unsuccessful after three months of attempts, the news company can take the platform to an arbitration process.

That process will involve both the publisher and platform submitting a final remuneration offer, and a panel of arbiters making a final decision. However, publishers will only be able to take a platform to arbitration once every two years.

Google’s response added that the code was unworkable as it requires it to provide news publishers with “special treatment” specifically 14 days’ notice of certain changes to algorithms and ‘internal practices’. It also imposes a arbitration model that “considers only publishers’ costs, not Google’s; incentivises publishers to make ambit claims and resort to arbitration rather than good-faith negotiations; assumes that the internet has never required payments for links because of ‘bargaining imbalance’; and requires the decision-maker to choose a single ‘final offer’”.

The Federal Government asked the Australian Competition and Consumer Commission (ACCC) to develop a mandatory code of conduct between Australian news media businesses and digital platforms, specifically Google and Facebook, following the ACCC’s Final Report of its Digital Platforms Inquiry. The report identified that Facebook and Google had each become unavoidable trading partners for Australian news media businesses in reaching audiences online, resulting in an imbalance in bargaining power.

Parliament is now on summer break and will not sit again until 2 February 2021.


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