THE ART OF THE DEAL: ACCC NEWS MEDIA BARGAINING CODE IMMINENT

The Australian Competition and Consumer Commission (ACCC)’s mandatory news media bargaining code (the Bargaining Code) looks set to shake up how Australian news content is monetised and treated online.  The Federal Government has directed the ACCC to address imbalances in bargaining power between news media organisations and the digital platforms that were identified in the regulator’s 2019 Digital Platforms Inquiry and subsequent report (and which the ACCC has been unable to get voluntary commitments on). The ACCC is now a little under a month away from issuing the much anticipated draft Bargaining Code.

Some of the key issues flagged for inclusion by the ACCC in its ‘Concepts Paper’ include the following:

Who will have to comply?

At least initially, the Bargaining Code will only apply to Facebook and Google. The ACCC has said that this is because these particular platforms benefit significantly from the current imbalance of bargaining power in commercial negotiations – although it remains undecided whether other products and services owned by Facebook and Google will also be subject to the Bargaining Code. The Concepts Paper also foreshadows expansion of the scope of the Bargaining Code in the future to catch other platforms that later attain a similar level of clout.

What content will be protected?

News media organisations produce a range of content, some of which would be considered ‘hard news’, while other content might be better classified as ‘infotainment’. The Concepts Paper has suggested that news media organisations could rely on the Bargaining Code in the case of relevant content, and that establishing the scope of the Bargaining Code could be achieved by a specific definition of the term ‘news’, as informed by factors such as the origin of the content (e.g. news organisations) or the qualification of producers (e.g. qualified journalists with professional memberships to key industry bodies, adhering to existing industry codes).

How will protected content be monetised and revenue shared?

The core focus of the Bargaining Code is to address ‘appropriate remuneration’ for Australian news organisations where their content is used and shared by Facebook and Google. The Concepts Paper suggests four different possible frameworks for the commercial negotiation of remuneration between the parties:

  1. bilateral negotiation, mediation and arbitration;
  2. collective bargaining;
  3. collective boycott; or
  4. collective licensing / fee arrangements.

Although both collective bargaining and collective boycotts usually require the ACCC’s authorisation, if either ultimately forms part of the final Bargaining Code, prior approval will not be necessary.

How will protected content be treated online?

The Concepts Paper raises a number of different aspects about the treatment of protected news media content and calls for further input by affected parties, for example:

  • the need for more information around how the digital platforms treat news content that has been placed behind paywalls (as opposed to content that is not);
  • the impact of algorithms upon content monetisation and whether digital platforms should have to provide more information about their algorithms, and changes to them, to news media organisations;
  • balancing news media organisations’ interest in having some control over content display for branding purposes, against the digital platforms’ interest in “calibrating” the look and feel of content that appears on their services.

While the Concepts Paper considers dispute resolution mechanisms and enforcement necessary to ensure compliance, the ACCC has acknowledged that any such mechanisms will need to avoid disincentivising the distribution of Australian news on the digital platforms.

A draft code is expected to be released for public consultation by the end of July 2020, with a final version to shortly follow. The ACCC’s Concepts Paper is available at this link.

This article was authored by Alexandra Moore (Solicitor), Valiant Warzecha (Solicitor), Jessie Buchan (Senior Associate) and Melinda Upton (Partner and Global Co-Chair, Intellectual Property and Technology).