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The Australian News Bargaining Code, if passed, will prevent companies like Google and Facebook from displaying images and snippets (and possibly even headlines) on their platforms unless they pay content creators for the right to do so.

In response, Facebook today removed all posts from all Australian media sites' facebook pages - a fairly drastic action - so as to prepare for and not fall foul of the new code, leaving media pages with millions of followers appearing to have no posts at all:

Australian Media Companies' Facebook Pages Have No Posts

Under the code, presuming Google also do not agree to the code, Google will not be able to show Australian media articles to Australians in Google News, but will Google News be legally able to display Australian media articles to users outside of Australia? (e.g those whose IPs show them to be from other countries)

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  • "Google will not be able to show Australian media articles to Australians " — does the code actually say "to Australians" or similar? I would expect it to focus on what cannot be shown rather to whom. Which, by inference, means to everyone everywhere.
    – Greendrake
    Feb 18, 2021 at 0:27
  • @Greendrake "Which, by inference, means to everyone everywhere" - could an Australian institution/government/legal system tell Google what they can and cannot display outside of Australia though? Would they have the jurisdiction to enforce such a rule?
    – stevec
    Feb 18, 2021 at 0:38
  • @stevec Many countries have at least some laws which apply to actions or people outside their borders. The US has quite a few, so does the EU. Whether such laws can be enforced in any given case is a different matter, but if a company does significant business in Australia, then Australia may well be able to enforce such laws on that company.
    – David Siegel
    Feb 18, 2021 at 0:59
  • Mundane copyright, which can be enforced globally.
    – Greendrake
    Feb 18, 2021 at 0:59

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Yes, once law is passed and Facebook is designated under it as a "designated digital platform corporation" then it will be obligated either pay remuneration to all "registered news business corporations" in Australia for content they voluntarily post on Facebook, or not allow any Australian news on their site at all. The same applies to Google and in theory any other digital platform corporation designated by the Australian government. The law makes no distinction according to where the content is shown, but only Australian news businesses can benefit from it.

The purpose of the law is to "address a bargaining power imbalance that exists between digital platforms and Australian news businesses" and amends the Competition and Consumer Act 2010 to create a "News Media and Digital Platforms Mandatory Bargaining Code".

Currently Australian news companies, like any other Facebook user voluntarily posting content on the site, are paid nothing by Facebook. Similarly, Google doesn't pay anyone for the content the indexed on their site, essentially also voluntarily, since it's trivial to opt out of this. The Australian government sees this as the result of unfair competition. According to them, Facebook and Google have abused their power to force Rupert Murdoch's News Corp and other Australian news companies to agree to put their content on their sites for free.

This new bargaining code seeks to solve this problem by forcing designated digital platform corporations and registered news business corporations into final offer arbitration over remuneration if they can't come to a negotiated agreement. Any arbitration determination would require that Facebook or Google to pay some amount of remuneration, and the determination would be based in part on "the benefit (whether monetary or otherwise) of the registered news business’ covered news content to the designated digital platform service". This would include the benefit they receive by showing the content outside of Australia.

A key part of the law is it's "non-differentiation" requirements. This would prohibit Facebook and Google from showing or indexing Australian news corporations' content differently depending on whether they're forced to pay them money or not, or even whether they're an officially registered news business or not. This means Facebook and Google aren't allowed to choose to show some Australian news businesses' content and not others. If they show any of their content then they must show content from them all. If they show content from a registered Australian news business anywhere in the world then they must pay for it.

This leaves Facebook and Google with three options if the law passes:

  1. Pay for news content from all registered Australian news business.
  2. Don't show or index any Australian news business content.
  3. Remove their presence completely from Australia to prevent Australia from enforcing their law on them.
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  • Interestingly, if they go for option 2, it seems they can show all news content covering Australia, so long as the news media organisation isn't from Australia. Do Australian's care if the journalist happens to be working from New Zealand, UK, or US (or anywhere else)? Probably not. Seems hard to enforce
    – stevec
    Feb 18, 2021 at 4:54
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    @stevec Yah, this has no effect on news about Australia from outside of Australia. The law is only intended enrich Australian news business, so non-Australian businesses providing Australian news to Australians get nothing from it.
    – Ross Ridge
    Feb 18, 2021 at 6:14
  • Would option 1 would still leave them with a separate negotiation for each news agency? (i.e. they would still pay depending on the amount of content displayed, realistically)
    – user253751
    Feb 22, 2021 at 14:22
  • @user253751 Yes, there's no requirement that they pay every registered news business the same amount. Each registered news business either negotiates their own deal, or has it decided by an arbitrator.
    – Ross Ridge
    Feb 22, 2021 at 16:38
  • Well that makes the non-differentiation clause seem a lot less stupid.
    – user253751
    Feb 22, 2021 at 16:46

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