Parliamentary negotiations on platform bargaining

The shape of the News Bargaining Incentive (NBI) is shifting rapidly. Last week, Assistant Treasurer Daniel Mulino and Communications Minister Anika Wells announced the outcome of consultation on the draft legislation released in April. Earlier this week, there was speculation that negotiations between the Government and the Opposition will result in further changes. Then yesterday it was announced that legislation will be introduced to Parliament today, after the Government reached a deal with the Coalition. 

There are two parts to this new scheme to assist news media. The first is the bargaining scheme itself and the new statutory levy that will apply if digital platforms don’t invest enough in the deals they make with news businesses; the second is the distribution scheme that will hand out any funds collected as part of the levy. 

The first set of headline changes to the bargaining and levy side included the addition of professional networking services such as LinkedIn, a change in the revenue base from 2.25% of gross revenue to 2.5% of advertising revenue, and a requirement to strike deals with at least six news businesses rather than four. The first two aspects remain in the version announced last night, but there must now be a minimum of eight deals, with any single deal being limited to 25% of total payments. In addition, the revenue base will be calculated on the preceding two years rather than three, and the loading for deals with smaller or medium news businesses will be increased from 170% to 200%. 

The variations to the distribution scheme include provisions that favour smaller and regional media and tweaks to the funding criteria so that use of freelancers and other news production roles can be recognised, as well as the latest commitment that 5% of levy funds will go to Australian Associated Press (AAP), the independent service that provides news to other businesses. There will also be a new funding program for news businesses with revenue under $150,000. Below we have an analysis from Julie Eisenberg (based on last week’s announced policy changes) of submissions made to the consultation on the distribution scheme, which shows sharp divisions in how Australian media companies think it should work.  

The Government’s announcement last week drew sharp criticism from publishers, especially News Corp and Nine. They questioned the assumption that the changes to the cost base and the larger number of platform contributors would mean the overall pool of funds would remain at $200-$250 million per year as forecast, and they pointed out that the expansion from four deals to six would reduce the allocation to each beneficiary. The most recent announcements appear to address these concerns, at least in part. Although eight deals must be made, it appears the single deal cap of 25% works in conjunction with the eight-deal obligation, meaning that two or three larger news businesses could still receive 25% of the platform’s payments – as they could in the original design released in April, rather than the 16.6% cap that would apply to six equal deals – with the remaining funds being shared by other news businesses. On ABC Radio National this morning, Daniel Mulino observed that it’s possible that a platform will strike some deals without fully acquitting its financial obligations, leaving additional contributions to be made via the statutory levy.  

Stepping back and looking at this overall package of measures, it seems the bargaining component of the scheme is essentially a policy initiative designed to assist Australia’s larger media organisations, with a possible additional benefit to a handful of other providers. By and large, it’s the residual funds in the levy, along with direct government grants, that will assist smaller media. If that’s right, it’s a departure from the NBI’s predecessor, the News Media Bargaining Code, which was designed to support bargaining by a range of news businesses and which is thought to have resulted in around 36 agreements in total (with one of those covering 24 smaller publishers). We argued in our own submission that the draft legislation, which allowed for all platform funds to be directed to four recipients, was deeply flawed. The latest changes go some way towards addressing these concerns. That said, the final policy settings for both sides of the new scheme will need close consideration after the Bill is introduced and may need further refinement if the scheme is going to effectively support larger media without that being at the expense of smaller media and diversity more generally. Indeed, its overall success is likely to require the accumulation via the levy of a reasonable amount of funds for redistribution to a range of news businesses. It will also need to remove the double-dipping mechanism that sees large firms who strike deals also being first in line – well, first in line after AAP – to access any residual levy funds. The Government is also asking us to take on trust its plan to deal with the impact of AI in a separate regulatory response, when that could be part of this package.

Also, this week, we have a guest column from Associate Professor Jason Bosland from the University of Melbourne. Jason specialises in media law and is Australia's leading scholar on the use of suppression orders.  He takes us back to the case we mentioned a few weeks ago, AB v ABC in the Supreme Court of New South Wales, in which several high profile sportspeople obtained an injunction against the ABC reporting on text messages they exchanged. They were also successful in obtaining suppression orders, meaning we don’t know who these men are, let alone the content of their messages. Against the backdrop of this week’s announcement by the Victorian government that – if re-elected in November – it will “stop suppression orders being used to protect convicted rapists”, Jason takes us through the NSW decision and explains how the longstanding action for breach of confidence has been used to prevent publication in circumstances where the new statutory tort for serious invasions of privacy would likely fail. 

Finally, Monica looks at the announcement by Hannah Ferguson, the force behind the independent Cheek Media, that she will run against Prime Minister Anthony Albanese in the next election. Monica asks whether this will lead to further blurring of public roles previously kept separate.

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