(Images: AP)

As it quickly became apparent yesterday that Facebook’s shutdown of “news” pages extended well beyond those of media companies to a wide variety of non-media organisations — in some cases leading to restorations of pages following complaints — the definition of “news” became a central issue in the government’s attempt to extort large amounts of money from Google and Facebook on behalf of Australian media companies.

Facebook argues that, because of the broad definition of news content in the legislation establishing the mandatory news media bargaining code, it has no choice but to shut down all pages containing news content, regardless of whether they belong to media organisations or not.

Under the legislation, it’s not permitted to discriminate between news content from different sources.

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Facebook is correct that the legislative definition — bear in mind the legislation is not yet in force — for news content is extraordinarily wide. A definition of news content is important not merely for the kind of content that is covered by the code, but for determining who gets to participate in the code.

The explanatory memorandum for the bill explains that core news content relates to “issues or events that are relevant in engaging Australians in public debate and in informing democratic decision-making; or current issues or events of public significance for Australians at a local, regional or national level… There is no requirement that the content be produced by a journalist.”

It’s a very broad definition, only limited by the desire of the government to prevent unions, lobby groups and political parties being covered by the code, and by a vague restriction relating to purely comment-based content.

The broader the better, of course: the government wants as many media companies to be able to use the code to extract money from Google and Facebook as possible, and prevent the latter from arguing that some kinds of news content are not covered by the definition.

And for that you can thank two major industry players: News Corp and the Nine Network — who also happen to be the two biggest beneficiaries of the scheme.

In its submission to the ACCC when the competition regulator was consulting on what the code would look like in mid-2020, News Corp made clear how broad it wanted the definition of news content to be. This is what News Corp told the ACCC news content should be:

News Corp Australia considers that ‘news content’ should be defined broadly as ‘content produced for the purpose of investigating, reporting, or providing commentary on issues of interest to Australians’.
The definition of ‘news content’ should be agnostic as to form (which may include text, image, audio, visual or combinations of these) and delivery (which may include distribution through third party platforms such as social media platforms or news aggregators or delivery through smart speakers).
The scope of the term ‘news content’ should not be limited to specific subject matters. Nor should it be limited to public interest journalism or any notion of professional standards.

That is, News Corp thinks news is what is “of interest to Australia” — not what is actually in the public interest.

Nine had a different approach, of limiting the code to organisations that operated under the Australian Press Council or media regulator ACMA, or who were admitted by the ACCC on the basis that they employ professional journalists and “have demonstrated a commitment to presenting factual matters accurately.”

The ACCC issued draft legislation following consultation, proposing that news content be defined as “created by a journalist; and that records, investigates or explains issues that: (i) are of public significance for Australians; or (ii) are relevant in engaging Australians in public debate and in informing democratic decision-making; or (iii) relate to community and local events”.

News Corp was broadly happy with the definition but wanted sports and sports related news content and “social issues” added.

Nine, however, was not happy. It now wanted journalists excluded from the definition on the basis that it “creates an artificial distinction, which does not reflect the way in which that content is valued by consumers”.

It also wanted the ACCC to loosen the definition so that even programs that had only a small amount of news content would be subject to the code, rather than programs that were “predominantly” news.

When the government issued its draft legislation, miraculously, News Corp got the broad definition it wanted, and no requirements for public interest journalism, and Nine got what it wanted — the removal of any requirement to employ journalists to make the  content covered under the code.

In doing so, they demonstrated how little this whole scam is about quality journalism. They’re now rather poorly placed to criticise Facebook for shutting down non-news pages — after all, it’s the Nine-News Corp definition that there in the bill.

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Peter Fray
Peter Fray
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