The ACCC has issued a draft determination proposing to authorise Country Press Australia (CPA) and its members to collectively negotiate with Facebook and Google over payments for their news content that appears on the platforms.
CPA currently represents 81 news publishers who publish 160 regional newspapers across Australia, which provide local and independent news to regional communities in print and online.
CPA is seeking authorisation so its members can collectively negotiate with Facebook and Google about payments for content, as well as engage in discussions and exchange information with each other about those negotiations. The proposed authorisation is for a period of 10 years.
Without authorisation, these arrangements risk breaching competition laws because no digital platforms have yet been ‘designated’ under the news bargaining code. Designation would automatically allow collective bargaining for news media businesses.
On 29 April 2021, the ACCC granted urgent interim authorisation enabling CPA to commence collective negotiations while the ACCC continued with the authorisation process.
“Allowing the publishers of 160 newspapers to collectively negotiate with Google and Facebook should help address some of the considerable bargaining power imbalance that exists between the digital giants and these local news outlets,” ACCC Chair Rod Sims said.
“This measure should lead to more efficient and effective negotiations, making commercial deals more likely and thereby contributing to the sustainability of news in regional Australia.”
The ACCC invites submissions in response to the draft determination by 21 July 2021. The ACCC’s draft determination and more information on how to make a submission are available on the ACCC’s public register at Country Press Australia (CPA).
On 29 April 2021, the ACCC granted urgent interim authorisation allowing CPA to commence collective negotiations with Facebook and Google while the ACCC considers the substantive application for authorisation.
One of the 23 recommendations made by the ACCC’s 2019 Digital Platforms Inquiry final report was that a code be developed to address the imbalance in bargaining power between leading digital platforms and Australian news businesses. In April 2020, the Government directed the ACCC to develop a mandatory code. Legislation enacting the News Media and Digital Platforms Mandatory Bargaining Code was passed by Parliament on 25 February 2021.
The news bargaining code allows news media businesses to bargain individually or collectively with designated digital platforms about payment for the inclusion of news on their services. Designated platforms can make deals outside of the code and can also make ‘standard offers’ available to news media businesses. The provisions of the code, including the exemption for registered news businesses to collectively bargain with a designated digital platform, have not yet come into effect as no digital platforms have been designated by the Treasurer.
Before deciding to designate a platform, the Treasurer has to take into account whether a significant bargaining power imbalance exists between the platform and Australian news businesses, and whether the platform has made a significant contribution to the sustainability of the Australian news industry via agreements with Australian news businesses.
Prior to the provisions of the Code coming into effect, with the designation of digital platforms by the Treasurer, news media businesses can use the ACCC’s authorisation process to permit them to collectively bargain with digital platforms.
ACCC authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010.
Broadly, the ACCC may grant an authorisation when it is satisfied that the likely public benefit from the conduct outweighs the likely public detriment.