Facebook has successfully called the bluff of the Morrison government, with a few days’ shutdown of the pages of Australia’s media companies — and plenty of other collateral damage — securing a major watering-down of the government’s extortion racket “news media bargaining code”.
Yesterday Treasurer Josh Frydenberg blinked and announced a new set of amendments to the legislation that “will provide further clarity to digital platforms and news media businesses about the way the code is intended to operate”.
When the amendments appeared yesterday evening — so hastily drafted the new supplementary explanatory memorandum had a typo in it — they showed the government had significantly shifted the balance of power of the code in favour of Facebook.
The tech giant duly signalled it would restore the pages of the media companies, albeit reserving the right to take them down again in the future.
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Facebook was particularly aggrieved that under the existing code, the entire process, from being designated under the code, to being packed off, to final offer arbitration, could be rushed through by publishers. Now it needs to be given a month’s notice about being designated, and final offer arbitration — the government’s trump card in the whole code, under which an arbitrator could only pick one offer out of the platform’s and publishers — is now a “last resort” that will only occur after two months of mediation.
Moreover the process of being designated under the code now requires the treasurer to “also consider whether the group comprised of the responsible digital platform corporation and all of its related bodies corporate has made a significant contribution to the sustainability of the Australian news industry through agreements in relation to news content of Australian news businesses”.
And those “agreements” can now vary dramatically between media companies. Previously, a media company could trigger what is called the “non-differentiation” clause if it was eligible under the code but didn’t receive the same deal as other media companies.
Not merely can Facebook now remunerate different companies differently without triggering the clause, it can give preferential ranking to one company over another. Facebook can do a deal with Nine for $20 million, but then do a deal with News Corp for $15 million and, in exchange, rank News Corp’s content over Nine’s.
And the non-differentiation clause itself has been tightened so that only “news sources which regularly produce covered news content” are covered.
But just to cement Facebook’s much greater control of the process, the government has now changed the explanatory memorandum for the legislation to make clear what digital platforms the code covers: “This code only applies to the extent a platform is making covered news content available through those services intentionally.”
That’s why Facebook executive Campbell Brown said yesterday that the amendments allowed Facebook to “support the publishers we choose to … the government has clarified we will retain the ability to decide if news appears on Facebook so that we won’t automatically be subject to a forced negotiation”.
Unless Facebook intentionally makes news content available, it is not covered by the code. And you’ll have to do a deal with Facebook for it to intentionally run your content.
The rest of the world will take note that Australia has blinked — some already have.
Facebook is now nutting out deals with big media companies, with a dramatically stronger hand in negotiations than previously. The result will still be the same — whatever money is involved will simply flow to the bottom lines of media companies, rather than into public interest journalism.
But as we know, this has never had anything to do with supporting journalism, whatever lies the media companies may tell us.
Private Media, the publisher of Crikey, receives funds from Google’s News Showcase.