The ACCC has issued a draft determination proposing to authorise Commercial Radio Australia (CRA) to collectively negotiate with Facebook and Google over payment for their member stations' news content featured on the platforms.
CRA, a radio industry association, currently represents 261 member stations, which provide commercial radio broadcasting and audio content to Australian communities on analogue and digital radio and via online platforms.
The draft determination will authorise CRA to collectively negotiate on behalf of all of its members other than stations operated by Nine Entertainment Co. The proposed authorisation is for a period of 10 years.
"This authorisation gives CRA the opportunity to seek payment from Facebook and Google for its members' news content and for its members to engage in discussions with each other about those negotiations," ACCC Chair Rod Sims said.
Without authorisation, these arrangements risk breaching competition laws because no digital platforms have yet been 'designated' under the news bargaining code. Designation automatically allows collective bargaining for news media businesses.
The ACCC has also granted interim authorisation enabling CRA to commence collective negotiations while the ACCC continues with the authorisation process.
This follows the ACCC's decision to grant authorisation to Country Press Australia to bargain with Facebook and Google on behalf of its members on 5 August 2021, after Country Press was also initially granted interim authorisation on 29 April 2021.
"The passage of the news media bargaining code in early 2021 provided an incentive for the major digital platforms to pay media organisations for the news content displayed on their platforms," Mr Sims said.
"The ACCC will continue to consider authorisation requests from groups of Australian news media businesses that produce public interest journalism to ensure more efficient and effective negotiations with the digital platforms."
The ACCC invites submissions in response to the draft determination by 30 September 2021. The ACCC's draft determination and more information on how to make a submission are available on the ACCC's public register at Commercial Radio Australia (CRA).
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 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.
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.
