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.
Against that background, the ACCC has just released a concepts paper titled “Mandatory news media bargaining code”. 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.
An interesting aspect of the concepts paper is that the ACCC only targets Google and Facebook at this stage:
“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.”
Note that the bargaining power imbalances between news publishers and dominant online platforms is an issue, which I discussed in this paper.
(Image source: Bloomberg)