The Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Act 2021 (the code) is a mandatory code of conduct which governs commercial relationships between Australian news businesses and ‘designated’ digital platforms who benefit from a significant bargaining power imbalance.
The ACCC considers that addressing this imbalance is necessary to support the sustainability of the Australian news media sector, which is essential to a well-functioning democracy.
How it works
The code, which focuses on online content, came into effect on 2 March 2021. Under the legislation, the Treasurer is able to designate certain digital platforms as subject to the obligations under the code. No digital platforms have yet been designated, but this has not affected the effectiveness of the code.
In deciding whether to designate a digital platform, the Treasurer must consider whether there is a significant bargaining power imbalance between the platform corporation and Australian news businesses, and also whether the platform corporation has made a significant contribution to the sustainability of the Australian news industry, including through agreements to remunerate those businesses for their news content.
Review of the code
On 28 February 2022, the Treasurer released terms of reference for the review of the Digital Platforms Mandatory Bargaining Code. This review is being conducted by the Department of the Treasury in consultation with the Department of Infrastructure, Transport, Regional Development and Communications, the ACCC and the Australian Communications and Media Authority.
A consultation paper has been released to inform the review, with consultation closing on 6 May 2022. The review will report to the Treasurer and Minister for Communications, Urban Infrastructure, Cities and the Arts in September 2022.
The effect of the code
While the Treasurer has not designated any digital platforms or services to date, the ACCC considers that existence of the code and the threat of designation is having the appropriate and intended impact.
Following the introduction of the code, Google and Facebook (now Meta) have reached voluntary commercial agreements with a significant number of news media organisations.
The ACCC has separately authorised both Country Press Australia on 5 August 2021, and Commercial Radio Australia on 29 October 2021, to collectively bargain with each of Google and Facebook for remuneration for news content featured on those platforms without breaching Australian competition laws.
The ACCC has similarly published 2 collective bargaining class exemption notices lodged by the Minderoo Foundation on 24 January 2022 on behalf of 23 small publishers which allows them to collectively bargain with each of Google and Meta for remuneration for news content featured on those platforms without breaching Australian competition laws.
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.
Following consultation, the ACCC made recommendations to Government based on the views put forward by stakeholders. Government has now considered these recommendations and developed its final legislation.
The final legislation as passed by both houses on 25 February 2021 is available on the Federal Register of Legislation.
A joint media release from the Treasurer and the Minister for Communications, published on 25 February 2021, is available on the Treasury Portfolio Ministers website.