In early 2021, the Australian Government passed legislation to enact a news media bargaining code, with the purpose of “address[ing] bargaining power imbalances between Australian news media businesses and digital platforms, specifically Google and Facebook.”
The Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Act 2021 was passed in February 2021 and came into force on 3 March 2021. It amends the Competition and Consumer Act 2010 to place certain requirements on ‘designated digital platform services’ that make available news content of ‘registered news businesses’.
Under the Act, ‘make available’ has a broad meaning. It is defined in s 52B to include reproducing content on the service, providing an extract of the content, or linking to content.
Under s 52R, the digital platform service must provide information to the news business that lists and explains data relating to the platform service users’ interactions with covered news content. The section states that the digital platform is not required to give the data itself to the news business.
Under s 52S, the digital platform service must notify the news business if they are planning a change to their algorithm that alters the way in which the platform distributes content, and that change is likely to have a significant effect on the referral traffic from the platform to the news content of the registered news business.
Section 52X provides that the corporation responsible for the designated digital platform service must ensure that a proposal is developed for the service to ‘recognise’ original covered news content when it makes available and distributes that content. The proposal must be made in consultation with registered news business corporations.
The Act also establishes a mandatory system for bargaining between the parties. Under s 52ZE, a news organisation may give notice that they wish to bargain with a digital platform corporation over one or more specified issues relating to news content made available by the digital platform service. Once notice is given, obligations are placed on the parties to negotiate in good faith (s 52ZH) and to participate in mediation if agreement is not reached about the issues within 3 months (s 52ZIA).
Division 7 of the Act sets out a system of arbitration that applies where one of the core bargaining issues concerns the remuneration to be paid to a registered news business for the making available of news content by the digital platform service, and the parties have not been able to reach agreement on their own or through meditation.
Division 9 provides that digital platform corporations may make standard offers relating to remuneration to registered news businesses. If the news business accepts the offer, then the rules set out in the Act relating to bargaining and arbitration will not apply to the parties.
The news media bargaining code is overseen by the Australian Communications and Media Authority (ACMA).