The News Media Bargaining Code is a piece of legislation drafted by the Australian Competition and Consumer Commission (ACCC) in early 2020 for the purpose of supporting local Australian news and journalism businesses. It is supposed to serve as a balance of powers between large global social media companies such as Facebook, Google, etc and Australian businesses such as SBS, ABC, Nine, etc.

While the bill received widespread support from the Australian Parliament, there was strong opposition from the social media companies. After almost a year since the draft has been sent to Parliament, has it achieved its intended effects and purposes? Or has it become one of the many recent Australian legislative failures?

Early opposition

In August 2020, if you were a user of Google in Australia – every person that uses the internet should be – then it was likely that you would have received a message on the main search page notifying you of an “open letter to the Australian Government”. Clicking into that link would have shown you a video with the CEO of Google Australia – Melanie Silva – telling you that Google will have to shut down in Australia if Parliament decides to pass the News Media Bargaining Code.

Another act of opposition that dealt a heavier blow was by Facebook when they decided to block all Australian users from posting or seeing any news on any Facebook platforms. The decision was made when the Senate did not make any amendments to the bill after repeated warnings from Facebook that they will “reluctantly stop allowing publishers and people in Australia from sharing local and international news on Facebook and Instagram” if the original bill was to be passed. Even pages not directly related to the news organisations such as charity, weather, emergency services, etc became unavailable for access.

Despite showing a firm stance against the large social media corporations previously, the government caved in to Facebook’s actions and several amendments were added to the original draft. Prior to the amendments, the bill essentially gave the government power to force the media giants into negotiations with local news organisations and enforce favourable outcomes for the side of the news companies. However, the amendments essentially shifted some power back to the tech companies as the government had to provide considerations for their contribution to the Australian news industry and give a month’s notice if the government decides to force a deal.

An interesting side note is that Microsoft, one of the largest IT companies globally, has always voiced their support for the bill. With Bing as their search engine, which has a minor market share in Australia, Microsoft claimed they are happy to enter into any negotiations the government asks for. They even further declared their support for similar bills to be passed in the US and EU.

Issues regarding the deals

Recently Facebook has announced that they are not looking to negotiate any more deals just 6 months after the bill was passed. While Facebook did reach agreements with ABC, Nine, Seven and News Corp, no deals were striked with many other smaller news outlets. In particular Australia’s Special Broadcasting Service (“SBS”), a mainly government funded multicultural public broadcaster, along with several other outlets such as the Conversation, The Brag Media and Women’s Agenda could not strike a deal with Facebook.

While not possessing a large market share in the news industry, SBS provides a niche for the large immigrant population of Australia who wishes to view content and news of their home country. SBS is Australia’s leading multicultural and multilingual broadcasting station with about 80% of funding derived from the government.

A SBS spokesperson said,

“We are concerned about the impact on our audiences and discoverability of SBS content on the Facebook platform, noting that many of our audiences access SBS through Facebook… This outcome is at odds with the government’s intention of supporting public interest journalism, and in particular including the public service broadcasters in the Code framework with respect to remuneration.”

Commentary

It is quite ironic that the results of the bill have shown opposite effects to what it was intended to achieve. Instead of providing support for the smaller news outlets and companies that have struggled throughout the Covid-19 pandemic, the large news corporations were essentially “bailed out” by the government. Not only did the government fail to assist smaller companies secure deals, they could not hold their firm stance against the social media giants either. It is laughable to think the government could not anticipate Google and Facebook to take measures to defend their position in the market.

Perhaps the truth is the cynical analysis provided by the commentators at JuiceMedia and the government’s objective was to solidify their party’s power by satisfying the demands of the large news outlets in Australia. Whether this is the case will depend on the government’s response to Facebook’s aggressive attitude towards the smaller companies. If the legislation does prove to be a failure in Australia, then it is unlikely that any similar bills will be discussed in the US or EU any time soon.

Craig Xu is an aspiring solicitor, who is currently a 2nd year law student at UCL