[LINK] ACCC's Mandatory Media Bargaining Code

[Roger Clarke]

[ Stoe 1 is some degree of transparency about "algorithmic changes" (but
not about algorithms??  is that *really* of any value?).

[ Media corps will be permitted "to bargain, either individually or
collectively, with [500lb gorillas] Google and Facebook".

[ Having failed to get anywhere, the matter would go to arbitration.

[ So what principles would the arbitrator apply?

[ And how does this lead to platforms paying content-creators for the
use of their content?

[ Caveat:  I've not sat down and analysed the draft Code:
https://www.accc.gov.au/focus-areas/digital-platforms/draft-news-media-bargaining-code#consultation-on-the-draft-code
https://www.accc.gov.au/focus-areas/digital-platforms/news-media-bargaining-code/draft-legislation
https://www.accc.gov.au/system/files/Exposure%20Draft%20Bill%20-%20TREASURY%20LAWS%20AMENDENT%20%28NEWS%20MEDIA%20AND%20DIGITAL%20PLATFORMS%20MANDATORY%20BARGAINING%20CODE%29%20BILL%202020.pdf

[ Insertions in the Competition and Consumer Act at
  ss. 52ZC (p.19) and 52ZT (p.27) seem to be critical ]


Google, Facebook asked to give insider access to algorithmic changes
Under Australia's new mandatory media bargaining code.
Justin Hendry
itNews
Jul 31 2020
https://www.itnews.com.au/news/google-facebook-asked-to-give-insider-access-to-algorithmic-changes-551107

Digital platforms like Google and Facebook would be forced to notify
Australian news organisations of algorithm changes ahead of time under a
landmark media bargaining code developed by the Australian competition
watchdog.

The draft code of conduct, released for public consultation on Friday,
is intended to “address bargaining power imbalances between Australian
news media businesses and digital platforms”.

If adopted, it will allow news organisations to bargain, either
individually or collectively, with Google and Facebook “over payment for
the inclusion of news on their services”, as well as introduce a number
of enforceable minimum standards.

Where the two parties are unable to reach a deal on payment through a
three-month negotiation and mediation process, a binding “final offer”
arbitration process will be used to choose the most reasonable offer.

The Australian Competition and Consumer Commission has been developing
the code since April after the development of a voluntary code proposed
in the government’s digital platforms inquiry stalled.

The “accelerated” process was largely prompted by the coronavirus
pandemic, which Treasurer Josh Frydenberg said had “exacerbated” the
“sharp decline in advertising revenue” at media organisations.

The code would be mandatory for Google and Facebook, as well as
potentially other digital platforms in the future, if the Treasurer
“makes a determination specifying that the code would apply to them”.

Under the draft code, Google and Facebook would have to provide news
organisations with 28 days notice of “significant algorithm changes” to
allow them to adapt their business models.

This includes any changes that are “likely to materially affect referral
traffic”, “affect ranking of news behind paywalls” or result in
“substantial changes to the display and presentation of news, and
advertising directly associated with news, on digital platform services”.

“This advanced notice would give all news media businesses the
opportunity to implement strategies to maintain or increase audience
reach and engagement with their news on digital platform services”.

The code would also give the digital platforms the flexibility to
“implement urgent algorithm changes in a shorter timeframe under certain
exceptional circumstances” such as removing misinformation or responding
to a significant event like the 2019 Christchurch terror attack.

Digital platforms will also be required to provide news organisations
with “clear information about the nature and availability of user data
collected through users’ interactions with news on their services”.

But the code also makes it clear that there is no requirement for
“digital platforms to increase sharing of users data with news media
businesses”.

“Under the code, digital platforms must give news media businesses clear
information that explains what data they collect on users’ interactions
with news content on their services,” the ACCC states.

“This requirement is intended to resolve an information asymmetry
between digital platforms and news media businesses.

“Generally, news media businesses are not aware of the extent of data
collected by the digital platforms using news content, or how digital
platforms use and collect this data.”

Digital platforms that contrevene the code or media organisations that
don't act in “good faith” during negotiations would potentially face
infringement enforcement action for non-compliance.

The ACCC will be able to issue infringement notices of “600 penalty
units ($133,2000) where it has reasonable grounds to believe a party
that has contravened the code” or, for more serious matters, commence
court proceedings.

ACCC chair Rod Sims said the code, which takes the approaches the
experience of other regulators and policymakers in other countries into
account, to address the power imbalance between digital platforms and
news organisations.

“There is a fundamental bargaining power imbalance between news media
businesses and the major digital platforms, partly because news
businesses have no option but to deal with the platforms, and have had
little ability to negotiate over payment for their content or other
issues,” he said.

“We wanted a model that would address this bargaining power imbalance
and result in fair payment for content, which avoided unproductive and
drawn-out negotiations, and wouldn’t reduce the availability of
Australian news on Google and Facebook.”

“We believe our proposed draft code achieves these purposes.”

Consultation on the code will close on August 28.


-- 
Roger Clarke                            mailto:Roger.Clarke at xamax.com.au
T: +61 2 6288 6916   http://www.xamax.com.au  http://www.rogerclarke.com

Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA

Visiting Professor in the Faculty of Law            University of N.S.W.
Visiting Professor in Computer Science    Australian National University