Draft News Media Bargaining Code

Draft news media bargaining code

On 20 April 2020, the Australian Government asked the ACCC to develop a mandatory code of conduct to address bargaining power imbalances between Australian news media businesses and digital platforms, specifically Google and Facebook. The ACCC released a draft code for public consultation on 31 July 2020.

The draft code would allow news media businesses to bargain individually or collectively with Google and Facebook over payment for the inclusion of news on their services.

The code also includes a set of ‘minimum standards’ for:

  • providing advance notice of changes to algorithmic ranking and presentation of news;
  • appropriately recognising original news content; and
  • providing information about how and when Google and Facebook make available user data collected through users’ interactions with news content.

About the draft code

The code seeks to address the fundamental bargaining power imbalance between Australian news media businesses and major digital platforms. This imbalance has resulted in news media businesses accepting less favourable terms for the inclusion of news on digital platform services than they would otherwise agree to.

While bargaining power imbalances exist in other areas, the bargaining power imbalance between news media businesses and major digital platforms is being addressed as a strong and independent media landscape is essential to a well-functioning democracy.

Commencement

The code would commence following the introduction and passage of relevant legislation in the Australian Parliament. The ACCC released an exposure draft of this legislation on 31 July 2020, with consultation on the draft due to conclude on 28 August 2020. Final legislation is expected to be introduced to Parliament shortly after conclusion of this consultation process.

Roles and responsibilities

The draft code has been developed by the ACCC in close consultation with the Department of the Treasury and the Department of Infrastructure, Transport, Regional Development and Communications.

The ACCC would be responsible for administering and enforcing the code, and would have a role in providing submissions as part of compulsory arbitrations conducted under the code. The Australian Communications and Media Authority (ACMA) would be responsible for determining eligibility of news media businesses to participate in the code.

Platforms covered

Digital platforms must participate in the code if the Treasurer makes a determination specifying that the code would apply to them. The Government has announced that the code would initially apply only to Facebook and Google. Other digital platforms may be added to the code if they hold a significant bargaining power imbalance with Australian news media businesses in the future.

News media businesses covered

News media businesses wishing to participate in the code would apply to the ACMA. News media businesses would nominate which of their ‘news sources’ they would like included in the code. These can include news websites, newspapers and other print publications, television programs, radio programs, and other audio or video content made available online.

Based on the news sources they nominate, news media businesses can participate in the code if:

  • They predominantly produce ‘core news’, and publish this online. The draft code defines ‘core news’ as journalism on publicly significant issues, journalism that engages Australians in public debate and informs democratic decision making, and journalism relating to community and local events. Some examples of this kind of journalism are political reporting, court, and crime reporting.
  • They adhere to appropriate professional editorial standards. These can include editorial standards set by the Press Council or the Independent Media Council, editorial standards set in relevant media industry codes, or equivalent internal editorial standards.
  • They maintain editorial independence from the subjects of their news coverage. News sources are unlikely to meet this test if they are owned or controlled by a party that has a direct commercial interest in the coverage they produce — such as a magazine that mainly produces sponsored or ‘advertorial’ content, or a publication reporting on a local council owned by that council. News sources are also unlikely to meet this test if they are owned or controlled by a political advocacy organisation, such as a political party or a union.
  • They operate primarily in Australia for the purpose of serving Australian audiences.

In addition to the criteria above, an eligible news media business’s annual revenue must exceed $150,000, in either the most recent financial year or in three out of the five most recent financial years.

Draft code Q&As

Q&As: Draft news media and digital platforms mandatory bargaining code ( PDF 413.53 KB )

The ACCC invites all interested parties to provide their views on the draft code by 5 pm on 28 August 2020 .

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Google, Facebook and other digital platforms could be forced to pay hundreds of millions of dollars in fines if they fail to comply with a news media bargaining code released by Australia’s competition regulator on Friday.

The Australian Competition and Consumer Commission (ACCC)’s draft mandatory code will require the tech giants to take part in negotiations on fair payment for content, with the negotiations to be concluded within three months or else enter arbitration.

Who here thinks they (Google, Facebook, etc) will tell the ACCC to get fucked?

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Yep. If Google and Facebook have to pay, they’ll simply not carry the content, and the media companies will be in even bigger shit than they are in now.

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Free TV welcomes first steps towards fair payment for news content

Free TV Australia today welcomed the release of the exposure draft of the legislation that will ensure that Google and Facebook pay for the news content surfaced on their platforms as a significant and positive development.

Free TV Chief Executive Officer, Bridget Fair, said: “The important principle being recognised here is that our news content has significant value and that Google and Facebook should be required to pay a fair price for it.

“The reason this legislation is necessary is because neither Google or Facebook were prepared to genuinely negotiate a reasonable payment for their use of our news content on key services such as Google Search, Facebook Newsfeed or Instagram.

“We are pleased that the ACCC has recognised that without an external driver to reach agreement or to break a deadlock, the digital platforms are unlikely to change their approach to making fair payment for news.

“The algorithm transparency and anti-discrimination measures, together with the substantial penalties for breaching the Code, are a vital protection against punitive responses by Google or Facebook.

“We will take our time to work through the full detail of what the ACCC has released and look forward to working with the ACCC and the Government to refine the draft legislation to ensure that it achieves its intended purpose,” Ms Fair said.

These companies pay virtually no tax in Australia, good luck getting them to pay for news content - legislation or not.

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I’m not convinced that this will work - the media complain bitterly about the likes of Google and Facebook, but especially in the case of Facebook many are using it to engage with consumers.

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Yes. They all extensively post on Twitter and Facebook.

Agreed, and who’s to say Facebook will keep their accounts active if in a world where they start charging Facebook and twitter for access to the news? There’s always a catch 22. However this government wouldn’t necessarily give a rats though. Apple plays no tax , not at least I am aware of here in Australia. Government are just providing idle threats , I don’t see it eventuating though.

These big digital players were allowed to grow without suitable legislative protection to ensure payment of equitable taxation like most of the rest of the country’s businesses have to. As always, paying the price now for being way too slow.

Tax minimisation is legal and many entities take advantage of it - its not the fault of the digital companies that these exist. Forcing these companies to have a presence in Australia will just drive them away and new entrants in the market may reconsider launching in Australia.

This is about traditional media flubbing around instead of embracing digital and being swamped by new players who are a lot more agile. These companies can simply and quickly switch off the ability to post links to Australian media on your timeline/twitter feed and restrict functionality into Australia (like Google News - which happened in Spain) and everyone ends up losing.

But its ok, local media will just move more stuff behind overpriced paywalls and wonder why their engagement numbers drop like a stone.

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Regardless of old media’s self-interested position here, the new digital players’ low tax operation is indefensible. I don’t care what benefit people think Google and Facebook provide, government has a responsibility to ensure a reasonable playing field to ensure there is money to suitably invest in essential services while still minimising taxation across the country to maximise the ability for people to spend in the economy.

It is part of government’s role to ensure legislation is fit for purpose for the benefit of our society as a whole.

I think there is a clear difference between tax minimisation (e.g.: deductions) and actively moving cash off-shore which because of their size has a material effect on government’s cash inflows. When does that money come back into the Australian cash system? These are multi-billion dollar companies - they can afford to stump up an amount that is equitable to what the rest of us have to pay.

And Governments have continually failed in this regard (not just here but around the world) - the reality is that legislation cant easily keep up with the world that it exists in. The internet makes it trivial for these companies can operate to Australians without any physical or legal presence in this country

But all of that is moot - regardless of whether these companies paid their ‘fair’ share of tax, this would still be an issue, because our media have been caught napping and would rather act as a rent seeker (as is the Australian way). Readership/Viewership is falling through the floor because people aren’t seeking out the traditional means of delivering content and the writing has been on the wall for years

You’d think the Federal government would love to have Big Tech fund part of ABC and SBS, wouldn’t you? This really does smell like a favour to their corporate donors, doesn’t it?

Well, what a surprise, Google aren’t happy

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From Free TV Australia

Google’s cynical ploy to mislead and frighten Australians shows why the Code is necessary

Free TV Australia today said that the deliberately misleading “Open Letter to Australians” published today by Google highlights exactly why the mandatory Code is urgently needed.

Free TV Chief Executive Officer, Bridget Fair, said: “Google has shown once again how important free, strong independent news media industry is in Australia so that they can hold Google to account for pushing such deliberately inaccurate information to its users.

“These are the statements and actions of a monopolist flexing its considerable muscle to try and divert attention from the real issue—paying a fair price for the news content that creates value for the platforms.

“Google’s letter is straight out of the monopoly 101 playbook trying to mislead and frighten Australians to protect their position as the gateway to the internet. We’ve seen this kind of tactic before from big businesses trying to stop regulators from evening up the playing field so that they can hold on to excessive profits. Hopefully they will not succeed.

“The ACCC Code is about ensuring a free and vibrant Australian news media sector into the future. This breathtakingly misleading letter is not about consumer safety, it’s about Google maintaining money, control and market power.

“The facts are that nothing in the draft Code would require the platforms to provide any personal information about any Australian to any media company.

“To suggest otherwise is fake news.

“The draft Code recognises that the data of Australians is valuable and requires that the platforms be transparent about the value they currently extract from accessing Australian news content.

“It also requires that Google and Facebook tell registered media companies what types of data they collect from Australians who access news content but which they keep for themselves and do not pass on to the media companies. Any data that Google agrees to provide would have to be under existing Australian privacy laws.

“While it’s high time that the platforms woke up to the fact that Australians take privacy seriously, it’s cynical in the extreme to use this newfound concern to mislead Australians,” Ms Fair said.

From ACCC

Response to Google open letter

The open letter published by Google today contains misinformation about the draft news media bargaining code which the ACCC would like to address.

Google will not be required to charge Australians for the use of its free services such as Google Search and YouTube, unless it chooses to do so.

Google will not be required to share any additional user data with Australian news businesses unless it chooses to do so.

The draft code will allow Australian news businesses to negotiate for fair payment for their journalists’ work that is included on Google services.

This will address a significant bargaining power imbalance between Australian news media businesses and Google and Facebook.

A healthy news media sector is essential to a well-functioning democracy.

We will continue to consult on the draft code with interested parties, including Google.

Consultation closes on 28 August 2020.

More information about the draft news media bargaining code can be found here: Australian news media to negotiate payment with major digital platforms

From Fee TV

Time to get real on the value of news content

Free TV today released its submission in response to the ACCC’s draft news media bargaining Code and called for the legislation to be introduced as soon as possible.

Free TV Chief Executive Officer, Bridget Fair, said: “We strongly support this bargaining Code which will address the extreme imbalance in power between the digital giants Facebook and Google and Australian news media businesses. The recent heavy handed and misleading tactics employed by Google only underline the growing importance of the Code.

“The clear message to the digital platforms is that it is time to get real and start paying a fair price for news content.

“Australians know that when they see a television news story reporting from a town devastated by fire, or when they watch an update from the Chief Medical Officer that a news media business has invested in bringing them that story.

“Neither Google nor Facebook employ Australians to produce news, and yet they are capturing significant value from including our content as part of their service offering.

“There is absolutely no doubt that a platform with news content is far more valuable than a platform without the quality, credible and trusted content produced by news media businesses.

“This Code gets the balance right so that Google and Facebook must negotiate in good faith to share that value with news content creators so that we can continue to invest in delivering quality news to Australians.

“We are grateful for the opportunity to comment on the exposure draft of the Code. We have suggested three key changes that we believe are necessary to ensure the Code operates as intended. These are:

• Changes to the content test and definition of news content to ensure that it operates across all news media sources, including television
• Ensure non-discrimination provisions are not limited to de-indexing news, but cover all touchpoints a news media business may have with Google or Facebook
• Limit the scope of overly broad and uncertain trade secrets provisions

“We urge the Government to move forward quickly on this important public policy initiative so that negotiations on fair payment for news content can begin without any further delay,” Ms Fair said.

Nine Entertainment also made its own submission to the ACCC regarding changes to the draft news media bargaining code.

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