The ACCC has granted interim authorisation for Country Press Australia (CPA) members to collectively negotiate with Facebook and Google over payments to publishers for their news content that appears on the platforms.
CPA is an industry body that represents the interests of independent regional and local newspapers throughout Australia. CPA currently represents 81 members and 160 regional newspapers, which provide local news to regional communities in print and online.
Authorisation will enable CPA members to collectively negotiate with each of Facebook and Google, engage in discussions with each other and exchange information about those negotiations. Without authorisation, these collective bargaining arrangements would risk breaching competition laws as no platforms have yet been 'designated' under the news bargaining code, which would automatically allow collective bargaining for news media businesses.
"The ACCC considers that allowing CPA members to bargain collectively is likely to result in public benefits by enhancing negotiations between regional publishers and digital platforms, and thereby assisting the sustainability of regional news production," ACCC Chair Rod Sims said.
"These public benefits align with the purpose of the news media bargaining code, which was intended to allow and encourage collective bargaining."
"We welcome the fact that both Facebook and Google appear to be successfully reaching voluntary deals with Australian news businesses, including a number of smaller publishers, following the passage of the bargaining code. The onus now remains on Facebook and Google to continue to negotiate in good faith with news businesses of all sizes," Mr Sims said.
Following the interim authorisation, CPA members can now commence collective negotiations while the ACCC seeks feedback on CPA's application for final authorisation.
The ACCC's statement of reasons for the interim authorisation and more information on how to make a submission are available on the ACCC public register at Country Press Australia (CPA).
Background
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 fundamental bargaining power imbalance between Australian news businesses and major digital platforms has resulted in news businesses accepting less favourable terms for the inclusion of news on digital platform services than they would otherwise agree to. The bargaining power imbalance between news businesses and major digital platforms is being addressed as a strong and independent media landscape is essential to a well-functioning democracy.
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.
The news bargaining code legislation has encouraged digital platforms Google and Facebook to enter into good-faith commercial negotiations with a number of Australian news businesses.
Note
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.
