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Intellectual Property & Technology Law Noticeboard February 2021 - Parliament passes Media Mandatory Bargaining Code

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The News Media and Digital Platforms Mandatory Bargaining Code has passed Parliament, ending an extended standoff with Facebook which has restored Australian news after last-minute amendments to the Code.

The Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 inserts a new Part IVBA – News media and digital platforms mandatory bargaining code into the Competition and Consumer Act 2010 (Cth). The Bill has passed both Houses of Parliament and is awaiting assent. The Code is set to commence on the day after receiving assent.

The new Code is designed to address the bargaining power imbalance between news media businesses and digital platforms Google and Facebook by requiring the tech giants to compensate media companies for their news content. Where bargaining parties are unable to reach an agreement within a specified timeframe, the Code subjects the parties to mandatory arbitration.

The Draft Code received staunch opposition from Google and Facebook since it was initially published by the Australian Competition and Consumer Commission in the form of the Exposure Draft Bill in July 2020. 

Both companies labelled the Code “unworkable”. Google threatened to pull its search engine from the Australian market should the law come into force but it subsequently proceeded to make deals with Australian media players, such as News Corp, Nine Entertainment Co. and Seven West Media, to provide content for Google’s newly launched “News Showcase” feature.  

After negotiations with the Government stalled, Facebook blocked users from viewing and sharing news content on its social network. Not only local and international news sites were not available, also government pages and emergency services were cut off.  

On Wednesday, the Government appeased Facebook by introducing further amendments to the Code in the Senate which were waved through in the House of Representatives the following day. 

In a joint media release, Treasurer Josh Frydenberg and Communications Minister Paul Fletcher celebrated “the Morrison Government’s world-leading” News Media and Digital Platforms Mandatory Bargaining Code as “a significant microeconomic reform, one that draws the eyes of the world on the Australian parliament.” 

The Australian Government’s attempt to regulate the digital platform providers through legislation has attracted the interest of governments and news organisations around the world as Facebook’s heavy-handed response to the Code has been deemed a warning shot to other countries looking to introduce similar legislation. British MP Julian Knight labelled Australia the “canary in the coal mine right now”

The Treasury will review the Code one year after commencement.

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Headshot of Ursula Neumayer-Stewart
By Ursula Neumayer-Stewart
Senior Content Manager

Ursula Neumayer-Stewart is a Senior Content Manager in the Analytical Law Team at Thomson Reuters. Ursula has been working as a communications professional in the private sector for close to two decades, specializing in corporate, academic and technical project management, editing and content management. Ursula has been working with Thomson Reuters for over a decade now. She has managed a wide range of publications during her time with Thomson Reuters and is at present nurturing multiple subscription services including The Law of Intellectual Property, Shanahan’s Australian Law of Trade Marks and Passing Off, Patent Law in Australia, The Law of Trade Secrets and Privacy, Australian Sentencing, Queensland Sentencing Manual, Criminal Procedure NSW and the Australian Intellectual Property Journal. Ursula holds a master’s degree in English Literature and Publishing. Prior to joining Thomson Reuters, she worked for academic publishers in Germany and Ireland.

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