The Australian Competition and Consumer Commission (ACCC)’s Digital Platforms Inquiry Final Report, delivered in July 2019, identified a fundamental bargaining power imbalance between Australian news media business and the major digital platforms. One of the ACCC’s key recommendations was for a bargaining code to address this imbalance. Intervention was deemed necessary because of the public benefit derived from news and a strong, independent media industry.

Although initially a voluntary code of conduct, on 20 April 2020, the Australian Government announced it had directed the ACCC to develop a mandatory code to address bargaining power imbalances between Australian news media businesses and each of Google and Facebook, for implementation by the end of 2020.

Exposure draft

The ACCC released the draft News Media and Digital Platforms Mandatory Bargaining Code on 31 July for industry response by 28 August 2020. The draft code provided four main sets of requirements:

  • Bargaining rules: A framework for news media businesses to bargain either individually or collectively with the digital platforms (Google and Facebook currently stipulated)
  • Compulsory arbitration rules: where negotiating parties cannot reach agreement, a final offer arbitration process ensues
  • Minimum standards: obligations on the digital platforms including data sharing and advanced notification of algorithmic changes
  • Non-discrimination requirements: to prevent a digital platform from disadvantaging the news content of any Australian news business

Following a joint response to the concept of the Code, PIJI again partnered with the Judith Neilson Institute for Journalism and Ideas (JNI) on this exposure draft. The PIJI-JNI project team, led by PIJI’s Policy Working Group, consulted widely across industry from an independent, research-driven position.

Our joint submission makes a total of 28 recommendations which seek to ensure greater clarity and equality within the proposed legal framework. These recommendations include:

  • Further value guidance around how payment outcomes will be determined
  • Addressing potential inequities for small to medium news businesses
  • Inclusion of ABC and SBS content, with any proceeds flowing to a public interest journalism fund
  • Participant news organisations to meet professional standards of practice
  • More detail and clarity around the definition of news and who produces it
  • The appointment of an independent third party to lead simple lump sum negotiations between digital platforms and smaller players
  • Initiatives complementary to the code, including a mix of industry, philanthropic, and governmental levers.

Read the Executive Summary and full joint submission to the Treasury Laws Amendment (New Media and Digital Platforms Mandatory Bargaining Code) Bill 2020.

Concepts paper

The ACCC released its Mandatory News Media Bargaining Code concepts paper on 19 May for industry comment. The Public Interest Journalism Initiative led a joint response project with the Judith Neilson Institute for Journalism and Ideas (JNI), which included wide consultation across the news media industry, digital platforms, sector peak bodies and community organisations.

The PIJI-JNI joint submission to the ACCC Concepts paper examined the following issues:

  • Definitions of news and public interest journalism;
  • The inclusivity of the code, particularly its bargaining framework, in terms of all manner of participants in the news media ecosystem;
  • Data sharing, algorithmic transparency; and
  • Code monitoring, enforcement and revision.
  • A pragmatic distribution model based on investment dollars in news, while a more precise formula is developed.

Our submission also recognised the need for other policy reform measures beyond the code to ensure public interest journalism has a sustainable future in Australia.

Read the PIJI-JNI joint submission to the ACCC Concepts paper.

Joint project team

The joint submission was prepared by PIJI’s Policy Working Group, as well as representatives of both the Public Interest Journalism Initiative and the Judith Neilson Institute, supported by two research consultants from the University of Technology Sydney.

Anna Draffin, Chief Executive Officer, Public Interest Journalism Initiative
Mark Ryan, Director, Judith Neilson Institute for Journalism and Ideas
Anthony Bubalo, Chief Operating Officer, Judith Neilson Institute for Journalism and Ideas
Dr Karen Lee, Senior Lecturer, Faculty of Law, UTS
Dr Sacha Molitorisz, Postdoctoral Fellow, Centre for Media Transition, UTS
Gary Dickson, Research and Projects Manager, Public Interest Journalism Initiative

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