Australia’s competition watchdog will be handed new powers to request information from digital platforms that could extend to secret commercial deals with news businesses under planned changes to the New Media Bargaining Code.
The code enables news businesses to bargain with digital platform operators like Google and Meta for payment for the use of their news content. Although no companies have been designated, Google and Meta have entered into commercial agreements with more than 30 Australian media companies outside of the code mechanisms.
Proposed legislative amendments will grant the Australian Competition and Consumer Commission (ACCC) “compulsory information-gathering powers” and could extend to the commercial agreements between digital platforms and news businesses, which have not been made public.
Treasury’s review of the News Media and Digital Platforms Mandatory Bargaining Code, published in December 2022, made five recommendations to improve the operation of the code. All recommendations were agreed to by the federal government in its response on Sunday.
The government will task the ACCC with producing periodic reports on the digital platforms that should be covered by the code using the new information-gathering powers that will be legislated. This will in part address the lack of a formal mechanism in the code to extend it to other platforms.
The periodic reports will consider the extent digital platforms make Australian news businesses’ content available and whether “significant bargaining power imbalances exist between these digital platforms and Australian news businesses”.
To designate a digital platform, the government must consider the existence of a power imbalance and “whether the platform has made a significant contribution to the sustainability of the Australian news industry through agreements relating to the news content of Australian news businesses, including agreements about remuneration”, according to the legislation.
Assistant Treasurer and Minister for Financial Services Stephen Jones said the review made “sensible recommendations to strengthen the code for the future, and we are glad to support them”.
“But let us be very clear: we already have the power to designate digital platforms and we are prepared to use it. We want to see news outlets and digital platforms come together and negotiate in good faith,” he said.
Communications minister Michelle Rowland said the government remains committed to ensuring “the sustainability of public interest journalism in the digital age” and that the recommendations would “ensure Australian news media businesses are properly remunerated for their journalistic content through commercial deals with platforms”.
A recommendation that an Australian regulator be granted information-gathering powers to collect data from multinational companies, often based overseas, were included in an ACCC proposal for a new digital competition code framework in its fifth interim Digital Platform Services Inquiry released in November 2022.
In its response to the Digital Platform Services Inquiry earlier this month, the government highlighted the need to consider “the broader allocation of powers for the regulator to enforce the regime and undertake roles under other reforms”, including the News Media and Digital Platforms Mandatory Bargaining Code information-gathering powers.
The government has also agreed that Treasury, in consultation with the Department of Infrastructure, Transport, Regional Development, Communications and the Arts, should monitor outcomes of the register of eligible news businesses to ensure it is consistent with the policy objectives of the code.
In a separate recommendation, the Australian Communications and Media Authority will be called on to “consider administrative issues arising in relation to the registration process”. This will help ensure the registration processes “operate as effectively and efficiently as possible, consistently with the existing provisions of the code,” according to the government.
A review of the code was initiated under the former Coalition government in March 2022, about a year after it came into effect.
A statutory review was required to be undertaken 12 months after the code was legislated. In its response on Sunday, the government agreed that the code will be reviewed again after four years of operation in early 2025.
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