Media Bargaining Law passes Australian Parliament | radioinfo

Media Bargaining Law passes Australian Parliament

Thursday 25 February, 2021

The media bargaining code has passed all stages of the Australian Federal Parliement and will now become law.

It will force digital media giants such as Google and Facebook to pay a fair amount to news publishers for being able to link to their journalistic content.

It comes as Facebook reached an agreement to reinstate news content on its platform.

A joint statement from Treasurer Josh Frydenberg and Communications Minister Paul Fletcher says:

...The Code will ensure that news media businesses are fairly remunerated for the content they generate, helping to sustain public interest journalism in Australia.
 
The Code provides a framework for good faith negotiations between the parties and a fair and balanced arbitration process to resolve outstanding disputes.
 
Importantly, the code encourages parties to undertake commercial negotiations outside the Code and the Government is pleased to see progress by both Google and more recently Facebook in reaching commercial arrangements with Australian news media businesses.

 

The Code is a significant microeconomic reform, one that has drawn the eyes of the world on the Australian parliament. Our commitment to legislating the Code reflects the importance of a diverse and well-resourced news media sector to our democracy and the Australian people...

The Bill was introduced in December last year and has just been passed today.

Download the text of the final version of the Bill here.

The core definitions and eligibility for publishers to register for payments are outlined in the bill:

52B  Making content available
             (1)  For the purposes of this Part, a service makes content available if:
                     (a)  the content is reproduced on the service, or is otherwise placed on the service; or
                     (b)  a link to the content is provided on the service; or
                     (c)  an extract of the content is provided on the service.
             (2)  Subsection (1) does not limit, for the purposes of this Part, the ways in which a service makes content available.
52C  Interacting with content
             (1)  For the purposes of this Part, a user of a service interacts with content made available by the service if:
                     (a)  the content is reproduced on the service, or is otherwise placed on the service, and the user interacts with the content; or
                     (b)  a link to the content is provided on the service and the user interacts with the link; or
                     (c)  an extract of the content is provided on the service and the user interacts with the extract.
             (2)  Subsection (1) does not limit, for the purposes of this Part, the ways in which a user of a service interacts with content made available by a service.
52D  Distributing content
             (1)  For the purposes of this Part, the following are examples of ways in which a service distributes content that is made available by the service:
                     (a)  ranking the content;
                     (b)  curating the content;
                     (c)  making the content more or less prominent;
                     (d)  making a user more or less likely to interact with the content.
             (2)  Subsection (1) does not limit, for the purposes of this Part, the ways in which a service distributes content that is made available by the service.
             (3)  For the purposes of this Part, treat the following alterations as alterations to the ways in which a service distributes content that is made available by the service:
                     (a)  an alteration to the ways in which the service distributes a particular class of content;
Example 1: An alteration that increases the prevalence or prominence of video content made available by the service by making such video content play automatically.
Example 2: An alteration that increases or decreases the prevalence or prominence of content made available by the service with which users of the service have previously interacted.
Example 3: An alteration that increases the prevalence or prominence of content made available by the service by making extracts from the content available on the service automatically.
Example 4: An alteration that increases the ranking of content made available by the service if a user’s friends and family have interacted with content.
                     (b)  an alteration to the ways in which the service distributes content of a particular content creator, or class of content creators;
Example 1: An alteration that increases or decreases the prevalence or prominence of content made available by the service if the content is created by a news business that has facilities to make content load rapidly.
Example 2: An alteration that decreases the prevalence or prominence of content made available by the service if the content is created by an automated account.
Example 3: An alteration that decreases the prevalence or prominence of content made available by the service if the content is from a particular website, where attempts have been made to manipulate rankings of content from the website.
Example 4: An alteration that decreases the prevalence or prominence of content made available by the service if the content is from an account of a celebrity or other prominent individual.
                     (c)  an alteration to the ways in which the service distributes a particular class of content in relation to a particular class of users of the service.
Example 1: An alteration that prevents inappropriate content being made available by the service to children.
Example 2: An alteration that increases the prevalence or prominence of particular content made available by the service to users of a particular age.
Example 3: An alteration that decreases the prevalence or prominence of particular content made available by the service to users who have indicated they do not wish to see such content.
Example 4: An alteration that increases the prevalence or prominence of content made available by the service to users who are affected by a natural disaster, if the content is reliable information about the disaster.
             (4)  Subsection (3) does not limit, for the purposes of this Part, the kinds of alterations that are alterations to the ways in which a service distributes content that is made available by the service.
Division 2—Designated digital platform corporation and designated digital platform services
52E  Minister may make designation determination
             (1)  The Minister may, by legislative instrument, make a determination that:
                     (a)  specifies one or more services covered by subsection (2) in relation to a corporation as designated digital platform services of the corporation; and
                     (b)  specifies the corporation as a designated digital platform corporation.
             (2)  This subsection covers a service in relation to a corporation if:
                     (a)  the corporation, either by itself or together with one or more related bodies corporate of the corporation, operates or controls the service; or
                     (b)  a related body corporate of the corporation, either by itself or together with one or more other related bodies corporate of the corporation, operates or controls the service.
             (3)  In making the determination, the Minister must consider whether there is a significant bargaining power imbalance between Australian news businesses and the group comprised of the corporation and all of its related bodies corporate.
             (4)  In making the determination, the Minister may consider any reports or advice of the Commission.
Division 3—Registered news businesses and registered news business corporations
52F  Application for registration of news business and news business corporation
             (1)  A corporation (the applicant corporation) may apply to the ACMA, in relation to a news business, for:
                     (a)  if the news business is not already a registered news business—the registration of the news business; and
                     (b)  if the applicant corporation is not already a registered news business corporation—the registration of the applicant corporation; and
                     (c)  the endorsement of the applicant corporation as the registered news business corporation for the news business.
             (2)  The application must:
                     (a)  be in writing; and
                     (b)  set out every news source that comprises the news business; and
                     (c)  set out details of the applicant corporation’s point of contact for the purposes of section 52Z; and
                     (d)  if regulations made for the purposes of this paragraph specify requirements—meet those requirements.
             (3)  The news business set out in the application may be comprised of some or all of the news sources that the applicant corporation, either by itself or together with other corporations, operates or controls.
52G  Registration of news business and news business corporation
             (1)  If the ACMA considers that the requirement in subsection (2) is met, the ACMA must:
                     (a)  if the news business is not already a registered news business—register the news business; and
                     (b)  if the applicant corporation is not already a registered news business corporation—register the applicant corporation; and
                     (c)  endorse the applicant corporation as the registered news business corporation for the news business.
             (2)  The requirement in this subsection is met if:
                     (a)  the application is in accordance with subsection 52F(2); and
                     (b)  if the news business is not already a registered news business—none of the news sources set out in the application in accordance with paragraph 52F(2)(b) form part of another news business that is a registered news business; and
                     (c)  if the news business is not already a registered news business—all of the following requirements are met in relation to the news business:
                              (i)  the requirement in subsection 52N(1) (the content test);
                             (ii)  the requirement in subsection 52O(1) (the Australian audience test);
                            (iii)  the requirement in subsection 52P(1) (the professional standards test); and
                     (d)  if the applicant corporation is not already a registered news business corporation—the applicant corporation meets the requirement in subsection 52M(1) (the revenue test); and
                     (e)  the applicant corporation meets the requirement in section 52L (connection between applicant corporation and news business) in relation to the news business.
             (3)  The ACMA must publish details of each registration and endorsement on the ACMA’s website (including details of the applicant corporation’s point of contact for the purposes of section 52Z).
 

The full text of the Bill is available here.

 
 

 


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