When considering access to content rules, what can we learn from the Ozzies?

HMG is considering access to content rules for digital platforms [1]. So, how well is the Australian News Media Bargaining Code (AMBC) [2] working out?

The AMBC has been in operation since 25 February 2021. Much was said at the time about it. Did the Australian Government back down when faced with Google and Facebook’s threats to withdraw from Oz? Or did Facebook cave? [3] Was the compromise reached a good one that safeguards journalism and an independent media? How is it all working out?

Why was there an AMBC?

The Australian competition authority, the ACCC, found in the Final Report of its Digital Platform Inquiry (July 2019) that there was an imbalance of bargaining power between Google and Facebook and news media businesses. News media businesses are not able to negotiate with the platforms for a share of the revenue generated by the digital platforms using their news content. The ACCC considered that government intervention was needed. The public benefit from the production and dissemination of news, and the importance of a strong independent media in a well-functioning democracy was threatened otherwise.

What is the AMBC?

The Australian legislation establishes a mandatory code of conduct to address bargaining power imbalances between digital platform services and Australian news businesses. It includes obligations about:

• bargaining in good faith – “designated digital platform corporations” (“designated platforms”) and registered news businesses that have indicated an intention to bargain, should do so in good faith;

• compulsory binding final offer arbitration – where parties cannot come to a negotiated agreement within 3 months about remuneration relating to the making available of covered news content on designated digital platform services, an arbitral panel will select between two final offers made by the
bargaining parties;

• non differentiation requirements, standard offers, collective bargaining, information requests, advance notice of planned changes and obligations to provide news businesses with information about users’ interactions with news content, and a requirement to develop a proposal to appropriately recognise original news content, are all in the legislation.  

contracting out – the legislation allows a digital platform to reach a commercial bargain with a news business outside a code about remuneration or other matters. It provides that parties who notify the ACCC of such agreements would not need to comply with the general requirements, bargaining and compulsory arbitration rules (as set out in the agreement);

The Australian Treasurer is the minister that has the designation power. If the Minister has considered whether there is a significant bargaining power imbalance between Australian news businesses and the digital platform corporation’s corporate group, ”and whether the platform has made a significant contribution to the sustainability of the Australian news industry”. So, if Australian news businesses receive substantial payments, the law does not need to apply?

See further: https://www.accc.gov.au/system/files/Revised%20explanatory%20memorandum.pdf

Comments and questions

The system appears to explicitly allow individual or collective dependency of news businesses on platforms.

Contracting out can be seen as a mechanism to create dependency. It is understood that both Google and Facebook created news products that are being used on a contractual basis.

There have been no disputes as far as we know. Rod Sims, the former Chair of the ACCC and father of the legislation, estimates that $200 million has been paid to journalists and sees that as a success. [4]   

But, how could an online news business realistically have a dispute with a dominant platform without risking delisting? If the online news business is not carried by the platform, how would you assess the business risk?  

Have the stated objectives of “achieving a strong and independent media” been achieved?

[1] Some claim it has been an unalloyed success: https://www.newsmediaalliance.org/australias-news-media-bargaining-code-is-a-major-success-that-the-u-s-can-emulate /https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1073411/Platforms_publishers_advice._A.pdf

[2] https://www.accc.gov.au/focus-areas/digital-platforms/news-media-bargaining-code/news-media-bargaining-code/final-legislation

[3] https://www.promarket.org/2021/02/25/google-facebook-australia-news-bargaining-antitrust-accc-small-publishers/

[4] https://jninstitute.org/wp-content/uploads/2022/05/Rod-Sims_News-Bargaining-Code_2022.pdf

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