Early Christmas present for publishers: Government tables news media bargaining code

The Morrison Government will this week introduce the highly anticipated News Media and Digital Platforms Mandatory Bargaining Code into the parliament.

The code is stated to “address the bargaining power imbalance between news media businesses and digital platforms”.

The code was developed after public consultation spanning almost three years, led by the Australian Competition and Consumer Commission (ACCC) and has received significant feedback and commentary from industry participants.

The code will initially apply to Facebook NewsFeed and Google Search. Other digital platform services can be added to the code in future if there is sufficient evidence to establish that they give rise to a bargaining power imbalance.

The code will:

  • encouraging the parties to undertake commercial negotiations outside the Code;
  • enabling digital platforms to publish standard offers, which provides smaller news media businesses with an efficient pathway to finalising agreements with digital platforms;
  • establishing a negotiation framework under the Code that allows both parties to bargain in good faith and reach binding agreements;
  • ensuring that an independent arbiter is able to determine the level of remuneration that should be paid under a fair and balanced final offer arbitration model should the parties be unable to reach agreement; and
  • setting clear and workable minimum standards for digital platforms including requiring 14 days advance notice of deliberate algorithm changes that impact news media businesses.

The code will enforce that news media businesses are remunerated for the content they generate, with the aim “to help to sustain public interest journalism in Australia” according to the treasurer.

News Corp’s chair Michael Miller noted that the “landmark piece of legislation” will be a “significant step forward in the decade-long campaign to achieve fairness in the relationship between Australian news media companies and the global tech giants”.

“All we have ever sought is a fair commercial outcome and fair payment for the valuable news content our journalists create. I believe this code puts  in place the framework for this to be achieved,” he said.

“As a result of their lobbying, the tech platforms have won concessions, and there should be nothing stopping them now from reaching fair commercial agreements. Ultimately, this code will benefit Australian consumers by helping sustain Australian news from Australian media companies.

“I understand why, in the face of the COVID crisis, the code will not be made law this year as originally planned, and I look forward to working with all participants to have the code in place in early 2021.”

A Nine Entertainment Co spokesperson stated: “While we are grateful for the ACCC code process, the continued concessions to the digital platforms only entrenches both their monopoly power and the significantly unfair imbalance in regulation. These companies pay little or no tax, contribute little and often negatively to our culture, and employ no creative teams.

“The notion they receive regulatory recognition with the so called two way value exchange, for something they already have a commercial model to monetise, seriously undermines the fundamental problem the ACCC identified in the beginning of this process – that is an abuse of monopoly power which fundamentally harms the future sustainability of media in Australia.”

Meanwhile, Seven West Media managing director and chief executive officer, James Warburton, said that the Morrison Government should be “congratulated for its pioneering and innovative News Media Bargaining Code”.

He added: “The revised code provides the concessions to the digital platforms that they have been asking for. There’s now no reason for Facebook or Google to be unwilling to negotiate fair agreements. Australians will be the winners under the code, with local media businesses that produce local news and content and support local jobs now provided with a pathway to a sustainable future.”

Google issued a statement following the announcement that it had not seen the code and would not be making a comment.

Facebook Australia managing director, Will Easton, said Facebook was reviewing the draft legislation and would “continue to engage through the upcoming parliamentary process with the goal of landing on a workable framework to support Australia’s news ecosystem”.

Last week Facebook announced that it would start paying publishers in the UK “for content that is not already on the platform, help publishers reach new audiences and bring more advertising and subscription opportunities”.

Facebook News, a dedicated space for national and local news, coming in January 2021. The first group of publishers featured in Facebook News in the UK includes Archant, Conde Nast, The Economist, ESI Media, Guardian Media Group, Hearst, Iliffe, JPI Media, Midland News Association, Reach, STV and others.

The UK launch in January will build on Facebook News in the US, where more than 95% of the traffic Facebook News delivers to publishers is new audiences that have not interacted with those news outlets in the past.


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