Section 52ZZS of the Competition and Consumer Act 2010 (the Act) requires a review of the operation of the News Media and Digital Platforms Mandatory Bargaining Code (the Code), as contained in Part IVBA of the Act, to commence within 12 months after the Code takes effect.
The Code aims to address bargaining power imbalances to ensure that digital platforms fairly remunerate news businesses for the content they generate, thereby helping to sustain public interest journalism in Australia.
The Code provides incentives for digital platforms and news businesses to reach commercial deals outside of the Code. If that is not possible, it provides a framework (following designation of a digital platform) for good faith negotiations and mediation between the parties. Where agreement cannot be reached, it sets out an arbitration process to determine remuneration payable by a digital platform.
The Code came into effect on 3 March 2021. During its period of operation, digital platforms have reached commercial agreements outside the Code with a range of large and small news businesses serving metropolitan and regional areas. The Australian Communications and Media Authority (ACMA) also registered a number of news businesses under Division 3 of the Code. To date, no digital platform has been designated under the Code.
The review will:
- assess the extent to which the Code, during its first year of operation, has delivered outcomes consistent with its policy objective; and
- identify potential improvements to the Code.
The review will not revisit the policy objectives of the Code.
Initially, and subject to the results of consultation, the review will assess the extent to which:
- commercial agreements between digital platforms and Australian news businesses;
- the designation provisions in Division 2 of the Code; and
- the registration provisions in Division 3 of the Code;
have delivered outcomes consistent with the policy objectives of the Code.
Process and timing
The review is to be undertaken by the Department of the Treasury, in consultation with the Department of Infrastructure, Transport, Regional Development and Communications (DITRDC), the Australian Competition and Consumer Commission (ACCC) and the ACMA.
The review will consult news businesses (including small and regional businesses), digital platforms and other relevant stakeholders, including by inviting written submissions.
Following stakeholder consultation, the Treasury will prepare a report containing the review’s findings and recommendations, in consultation with DITRDC, the ACCC and ACMA.
The report will be provided to the Treasurer and the Minister for Communications, Urban Infrastructure, Cities and the Arts in September 2022.
In accordance with section 52ZZS of the Act, the report will be published as soon as practicable after 28 days have passed after being provided to the Ministers.