A review of Australia’s media bargaining code has recommended the government investigate extending it to digital platforms other than Google and Facebook, and verify the value of the deals it is driving.

The review into the operation of the News Media and Digital Platforms Mandatory Bargaining Code in its first 12 months was released by Treasury late on Thursday, endorsing the code as largely a “a success to date”.

The world-first code came into effect in March 2021, requiring designated platforms to enter into forced arbitration with Australia media companies to determine revenue-sharing deals for the use of their content.

Photo: Shutterstock/Dragana Gordic

Tech giants have escaped designation under the code to date, however, thanks to last-minute changes to the legislation underpinning the code that allowed Google and Meta to avoid designation if they have existing deals with news organisation.

The government has previously argued the mere presences of the code helped Australian media companies secure financial deals with the digital platforms, making designation unnecessary.

The review, which is the result of a nine-month process that began in March, said that with more than 30 commercial agreements between Google and Meta and news organisations struck, it is “reasonable to conclude that the code has been a success to date”.

“The evidence before the review strongly suggests that the code has encouraged digital platforms to reach a substantial number of agreements with news businesses that would not have been made without the code,” the report said.

In their submissions to the review, both the ABC and the Guardian Australia said their commercial agreements with Google and Meta led to the creation of additional journalist roles and an expansion of their coverage.

But the review also found the code “lacks a formal mechanism to extend the code to other platforms”, with the ACCC not required to prepare reports for the minister on whether digital platforms should be designated.

“[The code] currently provides that, when making a designation determination, the minister may consider any ACCC reports or advice, but does not provide for the ACCC to prepare reports in the future,” the report said.

The review recommended the government “consider directing the ACCC to prepare periodic reports” on extending the code to other platforms, possibly every three years, to address any significant bargaining power imbalance that may emerge.

“This would ensure that the Minister has ongoing access to advice on bargaining power imbalances comparable to that provided in the final report of the ACCC’s 2018–19 digital platforms inquiry,” the report added.

The recommendation follows Meta’s refusal to negotiate with some news organisations, including SBS and The Conversation, which prompted former ACCC chair Rod Sims to call for its designation in May, and the emergence of new platforms.

A number of news organisations who submitted to the review recommended Apple be designated “as a mater of priority”, and that other platforms like YouTube, Instagram, TikTok, Snapchat and Twitter also be considered.

The review also recommended the government “consider addressing… whether the information-gathering powers [of the ACCC] could be used to obtain information about commercial agreements between digital platforms and news businesses”.

Despite requests or information, the review heard that agreements are “governed by confidentiality clauses and were not provided to the review by digital platforms or the relevant news businesses”. The total value of the deals sparked by the code is believed to be around $200 million.

In a joint statement, Communications minister Michelle Rowland and Assistant Treasurer Stephen Jones said the government is considering the findings and recommendations of the review and will respond in due course.

Other countries are in the process of introducing similar media bargaining schemes, including Canada which has legislation for a “more transparent” version of the Australian code before the House of Commons.

Do you know more? Contact James Riley via Email.

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