Parties concerned about power imbalances between old and new media have just two weeks to comment on how media organisations license news content for use on Google and Facebook.

A new concepts paper, released by the Australian Competition and Consumer Commission (ACCC), has outlined a range of issues relevant to the draft policies, which have evolved to address what ACCC chair Rod Sims called the “acute need to address the imbalance in bargaining position” that favours new-media giants.

The paper comes in the wake of the Digital Platforms Inquiry findings and the government’s response, with the ACCC last month directed to impose a mandatory code of conduct for digital media businesses.

The evolving Mandatory News Media Bargaining Code will, the paper says, guide the consultation process by “clarifying the issues to be included in the draft bargaining code, identifying and exploring options for addressing these issues, and seeking stakeholder feedback” on the code’s implementation.

One key issue is deciding which media organisations should be subject to the new code, with even the definition of ‘news’ up for discussion.

Content could be limited to organisations whose content is produced by professional journalists, published by a professional news media business, or just applied to any outlets that “adhere to and publish equivalent internal journalist standards”.

The draft policy will only apply to Google Search and Facebook News Feed in the first instance but will, the ACCC notes, include extension mechanisms “should other digital platforms attain a significant imbalance in bargaining power in their relationships with news media businesses in the future.”

This could see regulations extended to Instagram, WhatsApp, Google News, YouTube, Google’s Accelerated Mobile Pages (AMP) service, Google Assistant-based voice activation services, Android TV, Google advertising intermediary services, and others.

Where the money is

One core goal of the code is to formalise compensation structures by which news media organisations are paid for their content by Google and Facebook – what the ACCC termed “a necessary and central element of any code addressing bargaining power imbalance”.

Compensation options canvassed in the paper include bilateral negotiation, mediation and arbitration; collective bargaining, which could “secure more favourable commercial terms for the use of content than they might achieve through individual negotiations”; and collective licensing or fee arrangements by a collecting society that would monitor content usage and distribute fees at set rates.

This model might, for example, see a blanket licensing approach such as that used by APRA AMCOS-backed organisation OneMusic – which licenses music for use in hotels, community halls, restaurants, airlines, on-hold music, and other venues.

The ACCC even floated the possibility of collective boycotts, which would see news media organisations block content from Google and Facebook “if commercial negotiations are unsuccessful”.

Yet such boycotts could also harm news media organisations – which would lose referrals from the online platforms – and customers who would see reduced availability of Australian news through Google and Facebook.

Evaluating the direct and indirect value of content is, the ACCC said, a “highly complex and contestable” process given the broad range of content on digital platforms and the way it is presented.

Pricing would need to consider the value that news media organisations derive from their relationship with the digital platforms, including advertising and subscription referrals and the large volumes of user data that news media businesses get from the online services.

News organisations have already expressed their desire to get more data from online service providers, who argue that many news organisations are unaware of the sheer volume of data they can already access.

Submissions on the concepts paper are due by 5 June, with draft mandatory code due for release by the end of July.