The ACCC is seeking feedback and information on the definition of ‘news media’ to be included within the mandatory bargaining code being drafted to address the “bargaining power imbalances between Australia’s news media businesses and Google and Facebook”.
Yesterday, the ACCC released a Concepts Paper seeking feedback on a range of issues to determine the best way to level the playing field between Australian news media and Google and Facebook. The paper outlines the options it has identified to address each issue, and provides a list of consultation questions to guide feedback.
Noted issues include ths scope of the bargaining code, how particular issues should be addressed, how to facilitate open communication between publishers and digital platforms, the sharing of user data, algorithmic curation of news, and the display and presentation of news on digital platforms.
Defining Australian news media
First and foremost, the issue concerning magazine and digital publishers is whether they will be included within the scope of the bargaining code.
The ACCC states that it has received a wide range of opinions on how ‘news’ should be defined for the purpose of the code:
- Narrow view: applying to ‘hard’ news content such as politics, courts and major current events coverage
- Broader view: covering a wide range of news content, including sorts, celebrity and entertainment news, and reality television programming recaps
- The inclusion of voluntary bargaining codes that extend beyond news content to cover a wider range of content produced by media businesses.
The ACCC explains within the Concepts Paper that, given the nature of Australia’s news media industry – which produces a mix of content that encompasses news and other coverage (horoscopes, top 10 lists, crosswords, etc.) – it is appropriate for the bargaining code to incorporate “a definition of news that focuses on the news content itself rather than the nature of the news media business producing the content”.
“Under such a content-based definition, any Australian media organisation could be within the scope of the bargaining code if it produces at least some content that fits this definition; and only this proportion of its content will be subject to the bargaining code.”ACCC, Mandatory news media bargaining code: concepts paper.
The paper states that consideration may be given to whether news media organisations had to demonstrate a threshold level of involvement in the production of news content to qualify for the code.
The ACCC said it is also considering whether the bargaining code’s definition of news should require that content is produced by professional journalists, or published by a professional news media business. In this instance, it suggests that news covered by the code would be produced by journalists and businesses that:
- Are members of a relevant body maintaining industry standards (such as the Australian Press Council or the Independent Media Council); or,
- Adhere to a relevant media industry code; or,
- Adhere to and publish equivalent journalistic standards (such as the Guardian Editorial Code or the Conversation editorial charter).
“We seek stakeholder views on whether such mechanisms would provide a broad enough indicator of the news content that should appropriately be captured by the bargaining code,” states the paper.
“Whatever definition of news is adopted, it should be able to be objectively and readily identified by parties to the bargaining code. If necessary, it should be identifiable through any arbitration process that may be required to resolve disputes.”
Other mandatory bargaining code issues relevant to magazine publishers
The ACCC’s Concepts Paper also discusses how to deal with digital platform algorithmic changes, the treatment of paywalled news content and alternative news media business models, prioritising original news content, the display and presentation of news on digital platforms, and the control over advertising directly associated with news.
These issues and the consultation questions can be read in detail here.
How Australian news media got to this point
The Australian Government announced in April that it had directed the ACCC to develop a mandatory code of conduct to address bargaining power imbalances between Australian news media businesses and digital platforms.
This followed recommendations provided by the ACCC via its Digital Platforms Inquiry, which examined the impact that digital search engines, social media platforms, and other digital content aggregation platforms have on competition in media and advertising service markets.
The Digital Platforms Inquiry report found:
- The market power of Google and Facebook has distorted the ability of businesses to compete on their merits in advertising, media and a range of other markets
- The digital advertising markets are opaque with highly uncertain money flows, particularly for automated and programmatic advertising
- Consumers are not adequately informed about how their data is collected and used and have little control over the huge range of data collected
- News content creators are reliant on the dominant digital platforms, yet face difficulties in monetising their content
- Australian society, like others around the world, has been impacted by disinformation and a rising mistrust of news.
Google responded to the ACCC’s recommendations stating it was willing to co-operate on some points and not others, but that overall, the Inquiry didn’t recognise the value that Google had provided in driving traffic to Australian news media websites.
“In total in 2018, Google sent more than 2 billion clicks to Australian news publishers from Australian users, and more than 1 billion additional clicks to Australian news publishers from users globally,” said Melanie Silva, Managing Director, Google Australia.
Facebook also claimed that its terms are favourable to publishers, stating that the DPI report found no evidence that there is an imbalance of bargaining power between publishers and Facebook “and therefore no basis for the Australian Government to interfere in the commercial arrangement between large companies such as News Corp, Nine, Seven West Media, etc. and Facebook, all of whom are competitors for advertising revenue”.
Deadline for the Bargaining Code Concept Paper submissions
ACCC Chair Rod Sims said “We are keen to tap views on all the issues and ideas involved with this code. Given the tight timeframe we are seeking precise views on the content of the code and this concepts paper will facilitate this.”
The Concepts Paper is available on the ACCC website. Submissions in response to the concepts paper close on 5 June 2020.
The Government has asked that a draft mandatory code be released for public consultation before the end of July 2020, with a final code to be settled soon thereafter.