In March 2021, Australia introduced its News Media Bargaining Code – a world-first piece of legislation that sought to ensure that “news media businesses are fairly remunerated for the content they generate, helping to sustain public interest journalism in Australia.”
The competition regulator, the Australian Competition and Consumer Commission (ACCC), had proposed the code in the face of news companies’ ever dwindling revenues.
Today, similar codes are being discussed or introduced around the world, including in other MFC member countries – most recently in Canada. Meanwhile Indonesia is drafting a code, the EU adopted a copyright law in 2019 forcing platforms to pay for news content, and there have been legislative talks, official discussions and campaigns for codes in Brazil, India, South Africa and California.
The struggle to remain financially viable is one of the key media freedom challenges across the world. So now is a good time to ask – what has been learned from the Australian experience? And has the code provided benefits to news organisations there – including small publishers, whose business models are especially vulnerable to the migration of audiences to digital?
“Bedrock to remain sustainable”
According to a review of the first year of the code, commissioned by the Australian government, the impact so far has been positive. The final report of the Australian Treasury’s statutory review into the News Media Bargaining Code, released by the Albanese government in December 2022, said that “it is reasonable to conclude that the Code has been a success to date.”
The report recognized that some news businesses had not secured deals with Meta and/or Google; however, it also said that “over 30 commercial agreements had been struck, agreements that were highly unlikely to have been made without the Code. On the evidence available to the review, at least some of these agreements have enabled news businesses to, in particular, employ additional journalists and make other valuable investments to assist their operations.”
Chris Gogos is the Director and Publisher of Neos Kosmos, a leading Greek community newspaper and website with 85,000 print and 350,000 online monthly readers. He says the code “is a benefit to us no doubt.”
He says that while “the sustainability of hiring, maintaining and even growing our journalist pool is still very uncertain, the deal does provide us with a small buffer”. The firm has not made any redundancies in the past year and has been able to begin expanding its user payment model.
“It’s definitely helping us create the bedrock to remain sustainable,” Mr Gogos says.
Nelson Yap, publisher of the Australian Property Journal, says that “small and independent publishers have benefitted from the Australian code, which is why lawmakers around the world ought to introduce their own codes.”
He highlighted that the code has benefitted some publishers in rural areas with populations of less than 10,000 that had seen other media stop serving them.
No easy access for deals
Even if these small publishers have seen benefits, securing those benefits has not been straightforward. Once the code was in force, Google and Meta primarily made agreements with the larger companies in Australia’s news landscape, such as News Corp Australia, Nine-Fairfax, the ABC and Seven. And in making deals with them, the tech giants were able to swiftly compensate a large swathe of Australian media.
In contrast, Chris Gogos explains, “there were all these smaller players, like us and others, who didn’t actually have access [to Google and Meta] to do deals.”
“And even if you did, you’d actually be in a very poor negotiating position because you’re a tiny player trying to negotiate,” he adds.
To tackle this challenge, one group of small publishers came together to form the Public Interest Publishers Alliance, or PIPA. Over more than six months they gathered 24 independent publishers who were willing to join – among them women’s health, arts, science, environment, Italian, Indian and Chinese publications. Among them were Gogos’ and Yap’s media outlets – the latter being a Co-Chair of PIPA.
“The code benefitted the big media players initially,” says Lawrence Gibbons, also a PIPA Co-Chair, who publishes City Hub in inner-Sydney and the Star Observer, Australia’s largest LGBT publication, “but we have found that with us [as a group], Google was willing to support and negotiate in good faith with small and independent publishers.”
PIPA did reach an agreement with Google – although, to achieve a successful negotiation, they needed legal support and expertise, which was provided by the philanthropic Minderoo Foundation.
Looking back, Chris Gogos says they would have benefitted initially from more information and guidance about how to make the code work for them. “You can’t always rely on the market to come together and, as in our case, privately collectively bargain,” Mr Gogos says.
Details of any agreements reached are not available, because the code doesn’t oblige any details of deals to be revealed and they are covered by non-disclosure agreements (NDAs).
Without this information being public, publishers have found it more difficult to know what they can get and how to approach negotiations. The Treasury’s review looking at the first year of the code recommended that the government consider whether the ACCC could obtain information on agreements made in future.
Rod Sims, who was the Chair of the ACCC from 2011 to 2022 and a driving force behind proposing the code, says it has been an almost unmitigated success for small, medium and large publishers.
From his knowledge of the deals, he says “Google did a deal with every eligible business and Facebook did deals with media businesses that constitute 85 to 90 percent of journalists” in Australia, bringing in “over $200 million (AUD) … by our best calculations that’s about 25 percent of the cost of journalism (annually)”. The deals reportedly last from between three to five years.
What about the response of the platforms? Google and Facebook lobbied against the code in Australia, and have done so in other countries too. Facebook also blocked news for several days ahead of the code being passed and during the coronavirus pandemic and a bush fires crisis, drawing public condemnation.
However, there is some evidence on the importance of news content to the platforms’ revenues. Research on this issue is relatively limited, but Swiss researchers have found that search and continued engagement on Google is significantly enhanced due to news. The researchers calculated that Swiss publishers should receive around 40 percent of advertising revenue on digital platforms.
Facebook has said that news makes up less than 3 percent of what people see in their feeds. For Google’s part, it doesn’t run ads on its Google News service so, according to Google Spokesperson Jenn Crider, “the vast majority of [news] searches we don’t actually make money on.
“The purpose really is to empower people to understand the world through high quality journalism,” she says.
“It’s an important part of making sure that people have access to relevant and trustworthy information.”
“Bringing value to publishers”
She says that people connect to publishers through Google News more than 24 billion times a month, for free – visitors that companies are able to monetize.
“There’s a variety of ways that we bring value to publishers,” Ms Crider says, including tools for content creation and digital advertising.
One of the key issues that legislation of this type needs to determine is whether it should automatically make certain companies hosting news do deals. Australia’s bargaining code did not take this approach, but rather used the possibility of “designation” – in which a platform would be required to do deals – to encourage agreements to be made before this happens.
The counter-argument is that requiring companies to do deals might make for a more comprehensive outcome.
“There’s not a lot of rhyme or reason about who firms decided to deal with or not deal with,” says Andrea Carson, a Professor of Political Communication at the Trobe University in Melbourne and a former journalist.
“Some of them are really small – they’ve got to deal with Google. Meta tended to go for the big TV companies and the newspapers and, for example, it dealt with the Guardian Australia.”
Chris Gogos says, “I know that there’s a lot of small publishers that missed out or are yet to do deals because there was a time pressure and they weren’t aware of the collective bargaining.
“There’s probably a lot more out there that could have been involved, so it’s not ideal.”
However, as Rod Sims says, the ACCC’s aim was to bring about commercial deals without government involvement, to try to replicate a properly functioning market, and get money to publishers.
Another point to note is that the Australian code includes no stipulation for what publishers should do with the funds that are raised.
Ms Carson points out that under the current legislation firms could potentially spend these on any part of their business, even if it is unrelated to journalism.
However, Nelson Yap says that despite this, for small publications like his, “there is a direct correlation for sure that the funding that we receive from the tech giants, which is compensation for our content, is being reinvested in journalism.”
Mr Yap hopes the deals will continue beyond their current periods and that other countries will begin to adopt them – even if individual codes vary. “If each country can do it,” he says, “it will ensure the survival of the media and journalists around the world.”