11 June 2020
Introduction
On 19 May 2020, the Australian Competition and Consumer Commission ("ACCC") released a concepts paper seeking views from industry on a range of issues designed to guide the development of its mandatory code addressing the bargaining power imbalances between Australian news media businesses and digital platforms.
Whilst the Australian Government had initially directed the ACCC to develop a 'voluntary' code of conduct as an element of its response to the ACCC's Digital Platforms Inquiry, this was superseded by a direction to create a binding mechanism in light of vocal opposition from digital platforms and limited progress during the course of negotiations to develop a voluntary code in early 2020.
The ACCC's concepts paper contains a total of 59 questions to which it is seeking industry feedback. These relate to a number of key issues which include, for example:
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the definition of 'news' for the purpose of determining the type of content to be subject to the code, including whether it should be restricted to content produced by professional journalists, news media businesses or industry bodies;
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the scope and types of digital platforms to be covered by the code, including the best way to capture newly emerging and newly relevant products and services in the future;
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the most effective bargaining framework to facilitate commercial negotiations involving the determination of appropriate remuneration for the use of news;
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the sharing of user data; and
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the algorithmic curation of news.
Interestingly, the concepts paper is only considering 'digital platforms' insofar as they relate to the services provided by Google and Facebook. This is based on the ACCC's Digital Platforms Inquiry Final Report, which found that Facebook and Google were the digital platforms benefitting from a significant imbalance in bargaining power in their commercial discussions and negotiations with Australian news media businesses. However, the paper notes that future iterations of the bargaining code may be extended to other platforms if a significant bargaining power imbalance emerges between other digital platforms and news media businesses.
Responses to on the ACCC's concepts paper must be submitted by 5 June 2020. A draft of the mandatory code is set to be released for public consultation before the end of July 2020.
For further information, please contact:
Thomas Jones, Partner, Bird & Bird
thomas.jones@twobirds.com
