Changes to media bargaining code ‘clarifications’

The architect of the news media bargaining code, ACCC chair Rod Sims, has stared down critics of the legislation, launching a blistering defence of the proposed law.

Australian Competition and Consumer Commission chair Rod Sims. Picture: Sean Davey

The architect of the news media bargaining code, ACCC chair Rod Sims, has stared down critics of the legislation, launching a blistering defence of the proposed law and describing the new amendments as “clarifications rather than concessions”.

“I think they are wrong,” Mr Sims said of the critics who say Facebook got what it wanted under the negotiated amendments announced by Treasurer Josh Frydenberg on Tuesday. “The code will become law shortly, and Facebook will either have to do deals or they‘ll find themselves designated and caught by the code.

“Facebook has signed a deal with Seven West, I’m confident there’ll be more, and the objective of this was to get deals done. I’m confident the code has done its job, will continue to do its job, and that Facebook is effectively captured by the code and is responding to the code.”

Several media companies including News Corp (publisher of The Australian) and Nine are in ongoing discussions with Facebook about commercial deals.

When asked whether the 11th hour amendments – which include extra time for negotiations, and flexibility for the tech giants to avoid “designation” under the code if they sign adequate commercial deals – undermine the original intent of the code, Mr Sims was blunt. “I don‘t think so at all,” he said.

“Without the code, all the bargaining power rests with Google and Facebook. But I’d rather commercial deals get done than we go to arbitration.

“The two months (negotiating time frame) is fine. If the mediator thinks we’re not getting anywhere after two months, fine.

“And the recognition that you can have different deals with different players, we’ll see how that works out, but that was a misconception from Facebook in the first place. They’re important clarifications, and recognition needs to go to the Treasurer. Had it not been the Treasurer talking to Mark Zuckerberg, and to the chief executive of Alphabet (the parent company of Google) the week before, we wouldn’t be where we are,.” he said.

“There were misconceptions and if what the government’s done is give things that mean a lot more to Facebook than they do the government, then that’s how good deals are done.”

The competition tsar added that Facebook’s surprise move to block news from its platform in Australia was a clear exercise of market power, and that it was “patently absurd” for the tech giants to suggest that they don’t have market power.

He suggested Facebook‘s choices about what it carries on its platform show that the tech company is a publisher, by definition.

Attention will now turn to other jurisdictions including Canada and the UK, which are considering whether to pursue their own media bargaining codes.

“It very much depends on the background of other countries what they do, but if other countries do follow our lead, and that helps journalism overseas, well then of course I’ll be delighted with that,” Mr Sims said.

“[In Australia] I’ll be looking for firstly that everybody who’s able to be registered under the code does get a deal from both Facebook and Google, particularly that all the smaller players get the deals that we’re hoping they get, and that I’m expecting them to get. I really don’t think there’s any doubt they will, but that’s something we’ll be watching out for very closely.”