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16 key points you need to know about the Australian Media Bargaining Code

By Robert Whitehead

McPherson Media Group

Sydney, Australia

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This is a snapshot of the key components of the code. We will link back to this as a source for INMA’s reporting and analysis so it can be easily used as a reference. A link to the new Act of Parliament is also provided below. 

  1. News media publishers and platforms are required to enter binding commercial agreements.

  1. Google and Facebook are required by the Australian government to strike deals for payment to use a publisher’s journalism across products agreed on the platform’s network.

  2. The deals can differ in size and inclusions, depending on a particular news media publisher’s products and audiences.

  3. If a platform can’t strike one-on-one deals with all publishers, the Australian Treasurer is authorised to formally designate, or name, that platform under the code. This would make compliance with all aspects of the code mandatory for that tech giant. If a platform is not designated, it can strike deals outside the code which nevertheless would reflect the standards defined in the code.

  4. The platform would be given a month’s notice of any designation against it — after that time a range of punitive measures would kick in.

  5. After designation, if negotiation with that platform falls over within 90 days, a two-month cooling off period would apply. After that, each party would submit a final offer and an arbiter must select one of the two offers. (This is the so-called baseball arbitration mechanism, used in Major League Baseball in the United States.)

  6. This forced arbitration would require the arbiter to take into account the costs of creating the news content for publishers and any associated cost to the digital platforms for hosting it. It will also take into account the benefits to both parties that arise from the use of the content.

  7. If forced arbitration proceeds, the national regulator, the Australian Competition and Consumer Commission (ACCC), will provide a verified fact base to help assess the case.

  8. Platforms must strike deals with each Australian publisher. If one is left out, the platform must drop its Australian use of all professional journalism and from every source — local and international.

  9. Payments that arise after arbitration are to be paid as an annual lump sum. 

  10. Google or Facebook must give notice of changes to their algorithms that are primarily designed to change how news content is displayed. There are also standards of conduct on a range of areas, including about the release of user data to the media companies of data that is collected from their content.

  11. At this stage, only Google and Facebook are targeted by the code. Their specific products, Google Search for example, would only be formally designated in the code if commercial deals cannot be struck outside the code. Other tech companies may be added to the code. 

  12. Collective bargaining by groups of publishers is permitted.

  13. The code covers all producers of professionally created journalism with annual turnover of more than $US120,000. They must register as a news media company to be eligible for coverage.

  14. The code will not override any existing commercial contracts.

  15. Failure to comply with the Australian could cost the big platforms fines of up to 10% of their annual local revenue.

The legislation

If you wish to read the final legislation, as passed by the Australian Parliament on February 28, 2021, you can find it using this link.

Please note: The method used on the parliamentary Web site needs some navigation tips and a little bit of patience. Australia uses a system that records amendments in separate files. It places each round of incremental changes in a new document, rather than updating the full text of the legislation. 

Using this link:

  • Select explanatory memorandum in the PDF.
  • Read the supplementary memoranda, which will layer all amendments over the original legislation.

Taken together, they are the bill.

About Robert Whitehead

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