ACCC to create mandatory code of conduct for Google, Facebook

In April 2020 Josh Frydenberg, Treasurer of Australia, ordered the Australian Competition and Consumer Commission (“ACCC”) to create a mandatory code of conduct governing the relationships between digital platforms and media businesses.

The ACCC had been working on a voluntary code of conduct as a follow up to its Final Report on its Digital Platforms Inquiry, published in June 2019.

However, the Morisson government decided to accelerate the original time frame, as the media sector is under significant pressure (which has become worse amidst the Covid 19 pandemic and the related drop in ad revenue). Meanwhile, the ACCC reported to the government that, while discussions between the parties had taken place, “progress on a voluntary code has been limited“. The ACCC considered it unlikely that “any voluntary agreement would be reached with respect to the key issue of payment for content“. Against this background, the government decided to order the ACCC to promulgate a mandatory code of conduct, which would address “the sharing of data, ranking and display of news content and the monetisation and the sharing of revenue generated from news” while also establishing “appropriate enforcement, penalty and binding dispute resolution mechanisms“.

A draft code is expected to be released for consultation by the end of July, with a final code to be settled soon thereafter.

In response, Google noted in a recent blog post that it worked actively and in good faith on the voluntary code of conduct. The tech company rejected the idea of paying to display news content, noting inter alia that it delivers significant value to publishers.

Earlier the same month Google faced an interim measures order from the French Autorite de la concurrence to engage in good faith negotiations with publishers over their remuneration for reproducing their protected content (for an analysis of the Autorite’s decision, see here).

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