The News Media and Digital Platforms Mandatory Bargaining Code became law in Australia on 2 March. Was there a winner?

Two days before the code was passed in the parliament, on 23 February, the government made five last minute amendments aimed at providing “further clarity to digital platforms and news media businesses about the way the Code is intended to operate.” 

Below we take a look at the main changes between the draft code and the final text.

Two of the changes regard the designation of the platform’s services to be included in the code, two are about mediation, and the last one is on differentiation.

When it is preparing to make the designation of a platform or of one of its services, now the Minister must consider whether significant contributions to the sustainability of the news business in Australia have already been made by that platform’s group, through agreements.

The designation of the services to be included in the code was always supposed to happen at a later time. Our sources tell us that the government is now observing the negotiations between platforms and media businesses, and will determine at a later stage if and what to designate.

The original draft provided that the Final Offer Arbitration (FOA) would start immediately if an agreement could not be reached after three months of bargaining. The final law instead establishes that before recourse can be made to the FOA, a period of mediation must occur, of two months, renewable once with the agreement of the parties.

The code always established that the platforms are prohibited to discriminate between news media “participating in the code, or between participants and non-participants.” The last minute amendment reads that “non-differentiation provisions will not be triggered because commercial agreements resulted in different remuneration amounts or commercial outcomes that arose in the course of usual business practices.”

 According to our experts, the amended text further confirms that the legislator intention is to compel commercial negotiation, and make use of the code as a backstop, in case a deal cannot be reached by the parties. Indeed, the law’s regulation impact statement specifically says “News media businesses and digital platforms will be incentivised to reach agreements for remuneration for news content on digital platform services.”

 The code will be reviewed by Treasury within one year of its commencement to ensure it is delivering outcomes that are consistent with the government’s policy intent.

 All in all, and looking at the deals that Google and Facebook keep signing with news media in Australia, it seems that the country has reached its declared goal: to “ensure that news media businesses are fairly remunerated for the content they generate.”

For more insight, and a global overview of the world’s reactions to the code, we recommend watching the recording of Columbia’s discussion “Should countries copy the Australian news media code?” Rod Sims, the Chair of Australia’s ACCC and architect of the code, had a discussion with speakers representing competition authorities from around the world, on whether the law could – and should – be replicated in other countries.