The ACCC states
On 20 April 2020, the Australian Government announced that it had directed the ACCC to develop a mandatory code of conduct to address bargaining power imbalances between Australian news media businesses and digital platforms. The government has asked that a draft mandatory code be released for public consultation before the end of July 2020, with a final code to be settled soon thereafter. The ACCC recognises that bargaining power imbalances exist in other contexts, including in other commercial relationships involving digital platforms. However, the production and dissemination of news provides broad benefits to society beyond those individuals who consume it. The proposed bargaining code is intended to address bargaining power imbalances between Australian news media businesses and digital platforms in order to ensure that commercial arrangements between these parties do not undermine the ability and incentives for news media businesses to produce news for Australians.
The draft mandatory code of conduct to address bargaining power imbalances (the bargaining code) is being developed by the Australian Competition and Consumer Commission (ACCC) in close consultation with the Department of the Treasury (Treasury), and the Department of Infrastructure, Transport, Regional Development and Communications (DITRDC).
The ACCC is seeking the views of relevant stakeholders to inform the development of the bargaining code through a consultation period on this concepts paper scheduled for 19 May to 5 June 2020. This concepts paper is intended to guide the consultation process by clarifying the issues to be included in the draft bargaining code, identifying and exploring options for addressing these issues, and seeking stakeholder feedback by asking a number of specific questions about how these options may be implemented in the code.
The identification and explanation of issues in this concepts paper is based on:
- the research and findings of the ACCC’s Digital Platforms Inquiry (DPI), including submissions made by stakeholders during the course of that Inquiry
- submissions made by stakeholders during the course of Treasury’s 2019 consultation on the DPI’s recommendations, and
- information provided by stakeholders to the ACCC during the course of negotiations to develop a voluntary news media bargaining code in early 2020 (a process that has now been superseded by the development of the bargaining code).
We expect that news media businesses’ and digital platforms’ responses to the concepts paper will also reflect the discussions held between them during negotiations as part of the previous voluntary code development process.
The ACCC notes that while some of the discussion in this paper has been informed by confidential submissions made during these previous processes, no confidential material has been disclosed or attributed unless agreed to by the relevant parties.
Where this paper refers to ‘digital platforms’, this should be read to mean only the services provided by Google and Facebook for the purpose of the draft bargaining code. This is because the Final Report of the DPI (DPI Final Report) found that Facebook and Google were the digital platforms currently benefitting from a significant imbalance in bargaining power in their commercial negotiations with Australian news media businesses. As the digital platform and news media industries continue to evolve, a significant bargaining power imbalance may also extend to news media businesses’ commercial negotiations with other digital platforms. If this occurs, it may be appropriate to extend future iterations of the bargaining code to these other platforms.The ACCC goes on to note
the fast pace of change to the technology and business models used by news media businesses, Google and Facebook. This creates challenges in identifying solutions that are able to address current and future issues arising from the commercial relationships between news media businesses and digital platforms. On this basis, the consultation questions in this concepts paper provide stakeholders with the opportunity to update the ACCC on any developments since the publication of the DPI Final Report.
The ACCC is not proposing to re-examine the core findings of the DPI Final Report, and this consultation process is not intended to encourage stakeholders to re-submit specific claims already considered by the ACCC. However, we note that some areas of the concepts paper revisit particular proposals that were considered, but not endorsed, in the DPI Final Report. We have done this to canvass the full range of options available in addressing particular issues, including issues that stakeholders have previously identified as important, or issues that have continued to be considered in other jurisdictions overseas.
This concepts paper does not represent the views of the Australian Government.The paper asks the following questions
Scope of the bargaining code
1. How should ‘news’ be defined for the purpose of determining the type of content that will be subject to the bargaining code?
2. How can a bargaining code ensure that both news media businesses and digital platforms can easily and objectively identify the content subject to the code?
3. Would it be appropriate for the bargaining code’s definition of ‘news content’ to capture material: with the primary purpose of investigating, recording or providing commentary on issues of interest to Australians, and that is subject to the professional standards set by a relevant journalism industry body, journalistic standards set in a relevant media industry code, or equivalent journalistic standards set by an individual news media business?
Digital platform services to be covered by the code
Regarding the list of current services, the ACCC seeks stakeholder feedback on whether the bargaining code should apply to the use of news content by the following products and services in addition to Google Search and Facebook News Feed:
- Google News
- YouTube (owned by Google)
- AMP (closely associated with Google, including through hosting on Google cache)
- Google Assistant voice activation services and related services provided through ‘Google Home’ hardware and home automation devices
- Android TV
- Google’s ad tech intermediary services (noting that potential competition issues associated with such services are currently subject to the ACCC’s separate Digital Advertising Services Inquiry, which is scheduled to conclude by August 20213)
- Facebook Instant Articles
- Facebook Watch (Facebook’s in-platform video service, which already carries some Australian news content)
- Instagram (owned by Facebook)
- WhatsApp (owned by Facebook)
- Facebook News Tab (yet to be launched in Australia, but which commissions and publishes news content in a separate ‘tab’ to the main Facebook News Feed, and which is accessible through Facebook’s main website and mobile app).
4. Would a principles-based, or list-based approach be preferable in determining which digital platform services are captured by the bargaining code?
5. If a list is referenced in the bargaining code, what amendments should be made to the list below?
- Google Search
- Google News
- YouTube
- AMP (cached on Google’s servers)
- Google Assistant voice activation services and related services provided through ‘Google Home’ hardware and home automation devices
- Android TV
- Facebook News Feed
- Facebook Instant Articles
- Facebook Watch
- Facebook News Tab
6. How might a bargaining code include mechanisms to incorporate newly emerging and newly relevant products and services in the future?
7. What are the necessary elements for a bargaining framework to effectively address the bargaining power imbalance between news media businesses and each of Google and Facebook?
8. How effective would the following bargaining frameworks be in achieving appropriate remuneration for news media businesses for the use of news content by each of Google and Facebook:
- bilateral negotiation, mediation and arbitration
- collective bargaining
- collective boycott or ‘all in/none in’?
9. Are there major practical issues involved in the implementation of any of the bargaining frameworks listed in Question 8 above? If so, how might such practical issues be overcome?
10. Are other bargaining frameworks more likely to effectively address the bargaining imbalance between news media businesses in Australia and each of Google and Facebook?
11. Would it be useful for the bargaining code to include a requirement for parties to negotiate ‘in good faith’?
12. Should the bargaining code include requirements (such as time limits) and/or guidance on how negotiations should be conducted? What requirements or guidance are likely to be productive? What requirements or guidance are likely to be counterproductive?
13. How relevant are the following factors to determining appropriate remuneration for news media business:
- the value of news to each digital platform
- the value a news media business derives from the presence of its news on each digital platform
- the value of the availability of news on each relevant digital platform to digital platform users?
14. Would it be appropriate for commercial negotiations conducted under the bargaining code to have regard to the cost of producing news content?
15. How might any of the factors listed in Questions 13 and 14 above be quantified and/or treated in the course of negotiations between parties?
16. What other factors may be relevant to determining appropriate remuneration for news media businesses?
17. Are there any relevant ‘market’ benchmarks that may assist in the determination of appropriate remuneration?
18. How might the bargaining code define ‘use’ for the purpose of any mechanisms facilitating negotiation on payment for the use of news content?
19. How might any bargaining framework implemented by the bargaining code deal with the full range of businesses present in the Australian news media industry, including smaller, local and regional news media businesses and not-for-profit news media organisations?
Sharing of user data
20. What factors do Google or Facebook consider when determining the type or amount of user data that they share with third parties under their existing data-sharing policies?
21. What specific user data do news media businesses already receive from each of Facebook or Google in relation to users’ engagement with news media business content and what further user data would news media businesses like to receive from each of Facebook and Google?
22. Should the bargaining code include minimum data-sharing obligations for each of Google and Facebook? If so, what should these minimum data-sharing obligations require?
23. How should data-sharing and revenue-sharing arrangements facilitated by the bargaining code interact, given both would be intended to recognise that digital platforms obtain a benefit from content produced by news media businesses?
24. How should costs incurred by digital platforms in collecting and sharing data with news media businesses be recognised in data-sharing arrangements facilitated by the bargaining code?
25. Would it be appropriate for the bargaining code to address data sharing by putting in place commitments requiring ‘good faith’ negotiations on this subject between news media businesses and each of Google and Facebook?
26. Would it be appropriate for any data-sharing requirements in a bargaining code to be limited to data collected during the course of users’ direct interaction with each news media business’s content? Should this include data relating to aggregate audience numbers, audience demographics and audience interactions, such as how many and which users clicked on, ‘liked’, ‘shared’ or otherwise interacted with the content of that particular news media business? What other specific metrics might be relevant?
27. Would it be appropriate for each of Google and Facebook to provide news media businesses with access to additional data associated with individual users (based on anonymised user IDs), such as whether a visit to a news media business’s website follows previous interaction with this business’s content on a digital platform? If so, what steps should be taken to ensure an individual’s privacy is protected?
28. Would it be appropriate for each of Google and Facebook to provide each news media business with a list of all types of user data they collect through users’ engagement with their news content on their services, such as data collected on users accessing content published in the AMP and Instant Articles formats?
29. If the bargaining code were to include any commitments related to data sharing, which of the following services provided by Google and Facebook should those commitments apply to:
- Google Search
- Google News
- YouTube
- AMP
- Google Assistant voice activation services and related services provided through ‘Google Home’ hardware and home automation devices
- Android TV
- Facebook News Feed
- Facebook Instant Articles
- Facebook Watch
- Facebook News Tab?
Advance notification of algorithm changes
30. What would be an appropriate threshold for identifying a significant algorithm change which requires advance notice to be given by each of Google and Facebook, and what criteria should be used to determine this threshold?
31. How much notice should be provided by each of Google and Facebook for significant algorithm changes? How can this notice period be set in order to not unreasonably limit digital platforms’ flexibility to implement algorithm updates that may benefit consumers?
32. What information do each of Google and Facebook currently provide to news media businesses about the ranking and display of news, particularly with respect to ranking algorithms for content and changes to these algorithms?
33. What type of information would help news media businesses better understand and adapt to significant changes to ranking and display algorithms?
34. Under what circumstances might it be acceptable (or socially desirable) for each of Google and Facebook to not provide advance notice of significant algorithm changes?
35. Would it be appropriate for a bargaining code to include:
- mechanisms requiring digital platforms to provide news media businesses with advance notice of algorithm changes that may significantly affect the ranking and display of news at least X days in advance of implementing these changes, and/or
- mechanisms requiring digital platforms to notify news media businesses of algorithm changes that may significantly affect the ranking and display of news within X days of making a decision to implement such changes, and/or
- relevant exemptions or flexibility in complying with any advance notification requirements where the digital platform considers urgent algorithm changes must be made in the interests of its users?
Prioritising original news content
36. What benefits, if any, did Australian news media businesses experience following Google’s adjustment to its ranking algorithm to prioritise original news in September 2019?
37. In order to prioritise original news content on each of Google and Facebook, would it be appropriate for the bargaining code to include:
- mechanisms requiring news media companies to identify and advise platforms of material that is original news content, so that this could be taken into account by platforms in prioritising or communicating original content to users, and/or
- a set of broad principles governing how digital platforms prioritise original news content through their ranking and display algorithms, and/or
- mechanisms setting prescriptive requirements governing how digital platforms prioritise original news content?
38. How could ‘original news content’ be defined and identified under the bargaining code, and who should be responsible for defining or identifying this content?
39. Should any bargaining code requirement to prioritise original content distinguish between original investigative journalism and other types of news content? If so, how could this distinction be drawn?
Treatment of paywalled news content and alternative news media business models
40. Should the bargaining code contain any mechanisms requiring each of Google’s and Facebook’s ranking and display algorithms not to penalise the use news media business models that incorporate paywalls and subscription fees?
41. How might any relevant mechanisms in the bargaining code ensure treatment of paywalled news content is fair, without interfering with the general operation of ranking algorithms or unreasonably limiting consumers’ access to free news?
Display and presentation of news on digital platforms
42. What level of control do news media businesses have over how news is displayed on the services provided by each of Google and Facebook?
43. What restrictions on the display and presentation of news content on digital platforms do you consider necessary, and why?
44. Which specific digital platform policies and practices affecting the display of news have a negative impact on the business models of news media businesses and/or their ability to monetise content?
45. How might a bargaining code strike the appropriate balance between:
- providing news media businesses sufficient control over presentation and display of news content
- providing consumers with easy access to news content, and
- protecting the user experience on digital platforms, including providing digital platforms with the flexibility to improve this user experience?
46. Should a bargaining code include:
- mechanisms requiring digital platforms to enter into good faith negotiations with individual news media businesses on the display and presentation of their news content, and/or
- mechanisms requiring digital platforms to provide news media businesses with advance notice of and/or consultation on changes to policies and practices affecting the display and presentation of news, and/or
- mechanisms setting out either principles-based or prescriptive requirements for digital platforms to grant news media businesses a greater degree of control over display and presentation of content than is granted to other content creators?
Control over advertising directly associated with news
47. What specific controls do news organisations currently have over the use of advertising directly associated with news on the services provided by each of Google and Facebook?
48. Which restrictions on advertising directly associated with news content are necessary for each of Google and Facebook to impose, and why are these restrictions necessary?
49. Which restrictions on the use of advertising directly associated with news do news media businesses believe constrain their ability to monetise their content?
50. How might a bargaining code strike the appropriate balance between:
- supporting the ability of news media businesses to monetise news through advertising directly associated with news
- consumers being adequately informed about the nature of sponsored content, and
- preserving the user experience of consumers accessing news through digital platforms?
51. Should a bargaining code include:
- mechanisms requiring digital platforms to enter into good faith negotiations with individual news media businesses on the use of in-content advertising, and/or
- mechanisms requiring digital platforms to provide news media businesses with advance notice of and/or consultation on changes to policies and practices affecting in-content advertising technical standards for formats such as AMP or Instant Articles, and/or
- mechanisms setting out either principles-based or prescriptive requirements for digital platforms to grant news media businesses a greater degree of control over in-content advertising than is granted to other content creators?
Flagging ‘quality’ journalism
52. How could the bargaining code best ensure a contact point at a digital platform provides timely responses to issues and concerns communicated by news media businesses?
53. Would a point of contact outside of Australia be able to sufficiently address concerns of news media businesses in a timely manner?
54. Aside from availability and responsiveness of points of contact, what other obligations or guidance should the bargaining code include about ensuring open communication between both Google and Facebook and news media businesses?
55. What potential practical issues may arise from requiring contact points?
56. Are there any other means of communication that might usefully be included in the provisions of a bargaining code?
Dispute resolution and enforcement
57. What would be the most appropriate and effective mechanisms for resolving disputes about, and enforcing, compliance with the bargaining code?
58. What enforcement mechanisms should be included in the code? Should the code include pecuniary penalties?
59. Should the bargaining code include a compulsory review mechanism? If so, when and how often should this compulsory review occur?
