UK legislative redress for news publishers should not be modelled on the Australian News Media Bargaining Codes


  • The UK is considering implementing codes mandating that platforms payment for news content.
  • The Australian News Media Bargaining Code provides an interesting, if flawed benchmark, but is as yet untested.
  • It has not been applied on account of a political override.
  • The system as it operates in Australia risks creating economic dependency on irregular, non-benchmarked payments, threatening freedom of expression.
  • News publishers thus run the risk of being crushed by monopoly power.
  • If the UK aims to produce a workable solution to protect news publishers from the dominance of online platforms, we must avoid similar political encroachments on the application of legislation and the dependency trap this inevitably establishes.

With the Digital Markets, Competition and Consumer Bill expected to be brought forward in parliament next month, the issue of platform payment for content will be at the forefront of the minds of legislators and regulators alike. 

The financial sustainability of the traditional press is under significant threat – overall industry revenues fell by nearly a fifth between 2010 and 2018. Meanwhile, large tech and social media platforms earn enormous sums from news content: Professor Elliott estimates that the combined UK revenues of Facebook and Google from news content is roughly a billion annually. Naturally, redressing this imbalance should be a top priority.

Fortunately, formulating payment for content codes is not unchartered territory. The Australians, who recognised this issue in their July 2019, Digital Platform Inquiry, have been operating rules for digital platforms for two years in the form of the Australian News Media Bargaining Code (ANMB). Some in Government have expressed an intention to follow their example, and the CMA and Ofcom’s joint Advice to DCMS contains an uncritical reference to the ANMB. However, though the Australian government should be applauded for its pioneering spirit, in the interests of doing it once and doing it right, there are several glaring failings in the ANMB which should be considered when drafting our own access to content rules. 

The code of conduct established under the ANMB outlines a process for negotiation between designated platforms and news publishers designed to incentivise reasonable payment for content by mandating that an agreement must be reached within a three-month window. In the absence of a settlement, the matter is referred to an arbitral committee, which is free to select either offer. 

Thus, the Australian system essentially follows the principles of baseball arbitration, where the risk of a committee accepting a competitor’s unnegotiated position in theory compels both parties to come to a mutually beneficial arrangement.

However, without arriving at a reasonable determination of value, there is a risk that these unregulated negotiations produce the wrong answer. Moreover, the arbitration set out in the ANMB only relates to payment for content (see the provisions for final offer arbitration under paragraph 52zx – Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Act 2021 (legislation.gov.au)). This aligns with former ACCC chair, Rod Sim’s, idea of the purpose the legislation, namely to mandate that the platforms pay a proportion of news publishers’ costs (“So you’d naturally go to 10, 20 or 30 [%], I don’t know what the right number is, but you can tell that they provide at least a framework to anchor any discussion of value”, Sims: how tech giants could pay for journalism (afr.com)). The bill does not then consider the platforms’ ability to manipulate publisher earnings through its control of page visibility and manipulation of ad exchanges, which gives search engines and social media sites considerable power over single publishers. We would argue that a code should be firstly broader, but also contain a clear assessment based on benchmarked FRAND terms. 

Irrespective of its failings, the ANMB is crucially yet to be put to the test. In spite of their “strategic market status” and demonstrable platform functions, neither Google nor Facebook have been designated in Australia. Indeed, no company has. This peculiarity is owing to a single provision, which gives the Australian Treasurer who is singularly responsible for designation, the power to waive designation if the “platform has made a significant contribution to the sustainability of the Australian news industry”.

In Australia not all newspapers enjoy equal political clout. This is likewise true in the UK. By not automatically designating platforms and leaving the determination of what constitutes a fair contribution to a single politician, the risk is that the largest or most politically influential media brands receive succour at the expense of the industry as a whole.

Furthermore, we would argue that the Australian system engineers a dangerous level of financial dependence on platforms, particularly given that the determination of “substantial” is made unilaterally – with a view of course to the political landscape. Would a publication desperately courting a “substantial contribution to Australian journalism” and not fortunate enough to be blessed with the backing of the Australian political establishment, run stories that are reputationally damaging to Google and Facebook? It would certainly be a difficult editorial decision.

In short, there are two issues with the ANMB. The first is that political control over designation means that the legislation only protects as many media outlets as the political establishment chooses to deem significant; the rest remain in a similar predicament. The second inescapable problem is the Australian system risks eroding the independence of the press, particularly when the redress more resembles a mollifying bribe than properly benchmarked payment for content. 

The press is a crucial tenet of a free, democratic society and at its best it restrains the exercise of illegitimate power: what would we know of Watergate without the Washington Post? The thinning out of the newsroom floor has severe consequences for the investigative powers of the media. However, by the same token, robust editorial independence is equally essential: a well-funded press beholden to Google or Facebook is certainly not a viable alternative. 

When the UK considers access to content rules this should be borne in mind.

Header image courtesy of Wikimedia Commons (licensed for free under the Wikimedia Commons free license).