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.
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.
Final legislation was passed by both houses of Parliament on 25 February 2021 and received Royal Assent on 2 March 2021.
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.
Digital platforms must participate in the code if the Treasurer makes a determination specifying that the code would apply to them. Before making this determination, the Treasurer must consider whether there is a significant bargaining power imbalance between Australian news businesses and the relevant digital platform. The Treasurer must also consider whether the platform has made a significant contribution to the sustainability of the Australian news industry through agreements relating to news content of Australian news businesses.
To date, the Treasurer has not designated any digital platform services to participate in the code. As a result, the code’s obligations, including the minimum standards and the compulsory arbitration process, currently do not apply to any digital platforms.
News businesses are still able to register with the Australian Communications and Media Authority (ACMA) to participate in the code prior to the Treasurer designating any digital platforms. More information about registration can be found on the ACMA website.
News media businesses covered
News media businesses wishing to participate in the code can 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.