Digital platforms to pay for Australian news content under mandatory code of conduct

Facebook and Google will have to remunerate Australian news media companies under a mandatory code of conduct designed to level the playing field and govern an unbalanced relationship.

Unveiled today by Federal Treasurer Josh Frydenberg, the draft code establishes a framework through which news publishers can negotiate with digital platforms to secure fair payment for content produced.

"There is a very unequal bargaining position between Australian news media businesses that produce original content and the digital platforms," says Frydenberg.

"What we have sought to do with this mandatory code is not protect Australian news media businesses from competition or from disruption that is occurring across this sector.

"What we have sought to do is create a level playing field to ensure a fair go for Australian news media businesses and that when they generate original content that they are fairly paid for it."

The draft code was built in consultation with the Australian Competition and Consumer Commission (ACCC) and draws upon the findings from the watchdog's 2019 Digital Platforms Inquiry.

It will initially target Facebook and Google but has the potential to be expanded if the ACCC determines there are other digital platforms with a substantial power imbalance over news media organisations.

Publishers will have the opportunity to negotiate in good faith about the payment of remuneration. This can be done on an individual basis or collectively, and the code provides for a three-month negotiation and remuneration process.

Breaches of the code could see digital platforms like Facebook and Google being slugged with a fine of up to $10 million per breach.

The Australian Communications and Media Authority (ACMA) will assess the eligibility of Australian news media businesses to participate in the code under a set of criteria including:

• That they predominantly produce core news content like journalism, and they publish online;
• They adhere to appropriate editorial standards;
• They maintain editorial independence on the subject of their news coverage; and
• They operate in Australia for Australian audiences.

The ABC will not be able to negotiate with digital platforms for remuneration as they are primarily funded by taxpayer dollars, however they will be able to take advantage of the other minimum standards for non-remuneration as set out in the code.

These other obligations on digital platforms include:

• Giving publishers advance notice of algorithm changes affecting news ranking;
• Giving publishers information about the data they collect through users' interactions with news on digital platforms;
• Developing a proposal to facilitate the recognition of original news content; and
• Communication requirements by establishing a contact point for media businesses.

"Often these traditional platforms do not have a single point of contact which the media can reach out to as required," clarifies Frydenberg.

The ACCC will be responsible for enforcing the mandatory code and will be able to issue infringement notices for breaches.

The penalties are in line with those available under Australian consumer law of up to $10 million per breach, or three times the benefit obtained, or 10 per cent of annual turnover whichever is greater.

Consultation on the draft code will conclude on 28 August and final legislation is expected to be introduced to Parliament shortly after.

The Government will also conduct a review of the code within two years of its passage through parliament.

"This is world leading," says Frydenberg.

"Today's draft legislation will draw the attention of many regulatory agencies and many governments right around the world.

"Other countries have tried without a lot of success. We're confident that we will be able to implement this legislation."

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Business News Australia