Draft News Media and Digital Platforms Laws

The ACCC has proposed some new laws relating to news media and digital platforms. By digital platforms it means Google and Facebook, and by news media it means established mainstream media in Australia which (thanks to Australia’s hilariously concentrated media ownership) means, essentially, NewsCorp, Ninefax, and the ABC.

Anyhoo, I had a read through the proposed laws when they came out and did one of my Too Long; Justin Read threads on it which I have now turned into this blog. Read on below.

Justin Reads The Draft Laws So You Don’t Have To

By popular* request, a short #tljr on the draft ACCC news media and digital platforms law.
*request by one person: https://twitter.com/owenhollands/status/1289004802685329408

a) Draft legislation is here: https://www.accc.gov.au/focus-areas/digital-platforms/news-media-bargaining-code/draft-legislation
b) I Am Not A Lawyer

A fair summary of the broader context by @ashabeeeee is here: https://www.zdnet.com/article/google-and-facebook-to-bargain-with-aussie-news-outlets-for-fair-payment-terms/

The bits that stuck out to me as the most interesting were:
s 52M(e)
s 52S
s 52W
s 52Y(6)
but I’ll summarise the main ideas first.

Background

Short version: some Australian news orgs are salty that their marketing execs utterly failed to comprehend that online ads were going to kill their classifieds business for about 15 years.

Their strategic missteps over a quite astonishing length of time are apparently Google and Facebook’s fault because realestate dot com dot au, carsales, and eBay exist.

Because Facebook and Google (henceforth FandG) are unpopular at the moment (for a bunch of legitimate, but honestly I think orthogonal, reasons) AusGov has decided FandG have to subsidise news orgs in a way the government don’t have to call a tax.

FandG don’t want to, and the news orgs have no direct leverage, so negotiations went fairly predictably. The news orgs whinged to the government to give them special treatment, and because Australia is run by the Game of Mates, that’s what’s now happening.

AusGov is now forcing FandG to negotiate with news orgs on what the news orgs think are better terms than they’d get under standard market forces, but existing anti-competitive remedies aren’t being used because reasons.

On to the fun wrinkles in the proposed legislation.

The Proposed Laws

s 52M is about sharing surveillance data FandG collect about people who read news on FandG. The news orgs want access to all of it.

Right now they only get some, so s 52M forces FandG to tell news orgs what data they *could* get and how they might go about getting it.

Why news orgs want to spy on their readers more is a question that some people interested in investigating and reporting on issues might like to look into, but where would we find such people? A mystery for the ages.

There’s a bunch of stuff about giving advance warning of changes to The Algorithm which is going to be hilarious.

s 52S is the Australian Defamation Law section. See e.g. https://www.theguardian.com/media/2020/jun/01/australian-media-companies-face-defamation-liability-for-comments-on-facebook-after-court-dismisses-appeal for why this is here.

s 52T is the “recognition of original covered news content” section, which I’m sure will be of interest to the cut&paste brigade at Daily Mail Australia.

s 52W is trying to prevent FandG just… not carrying Australian news orgs like it did with Spain https://europe.googleblog.com/2014/12/an-update-on-google-news-in-spain.html and France https://www.engadget.com/2019-09-26-google-removes-news-snippets-in-france.html when they tried this previously.

s 52Y(6) is the “ABC and SBS can’t make money” section, which is funny because SBS does run ads. sbsmedia.com.au/advertise-with…http://www.sbsmedia.com.au/advertise-with-sbs Though apparently they don’t run TLS on their sales website. Boo!

And that’s my take on the highlights of the proposed laws. A lot of lawyers will add a storey or three to their boat arguing about this for years, assuming it makes it into law.

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