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Bad legislation behind Australian media code risks a negative outcome


The new Australian code is designed to allow media companies to negotiate fair payment for their journalists’ work from companies like Facebook and Google. Photo: Dado Ruvic/Reuters

The new Australian code is designed to allow media companies to negotiate fair payment for their journalists’ work from companies like Facebook and Google. Photo: Dado Ruvic/Reuters

The new Australian code is designed to allow media companies to negotiate fair payment for their journalists’ work from companies like Facebook and Google. Photo: Dado Ruvic/Reuters

What's that line about lies spreading halfway around the world before the truth has put its trousers on? Well, it seems the same is true of bad legislation.

The imminent arrival of Australia’s draft code on media bargaining has become an international soap opera. Google threatened to up sticks and leave Australia, then did an about face and started doing deals with Aussie media companies.

Facebook removed news, then reinstated it.

There was some political flip-flopping and plenty of accusations of protectionism. Despite this legislative mess playing out over the last week or so other jurisdictions seem interested in copying the Australian approach, rather than waiting for the dust to settle and taking a measured approach.

Let’s remind ourselves what the News Media and Digital Platforms Mandatory Bargaining Code Bill is all about. An inquiry in 2019 found that tech giants were taking a disproportionately large share of online advertising revenue in Australia, even though much of their content came from traditional media organisations.

The code is designed to redress this imbalance and will allow Australian news businesses to negotiate fair payment for their journalists’ work when it appears on platforms like Google and Facebook.

Binding arbitration and penalties are also included.

It’s a case of plucky little internet start-ups like Facebook and Google, being forced to give handouts to impoverished Australian news outlets like Rupert Murdoch’s Newscorp.

So what’s wrong with this law?

Firstly, it takes an anachronistic approach to links.

Yes, it proposes a link tax, or rather states that media companies can bargain collectively with tech companies that link to their content, even if it’s the media companies themselves that post the links.

Not only is this anathema to how the internet works - it is after all a big network of links – it’s out-dated and at odds with other legislative approaches, like the EU’s Copyright Directive which focuses on the use of snippets.

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Secondly, the legislation conflates two issues: the need to counter the unfettered influence of big tech companies, and the commercial struggles of media companies.

While the arrival of social and search platforms – Google, Facebook, Twitter, Craigslist and others – unquestionably undermined media business models, these are separate issues.

Mashing them together treats neither with the due respect and risks creating an unhealthy link between big tech and media. Big tech handouts are not a sustainable model for journalism and will lead to entrenchment, dependence and a lack of innovation.

Given these issues, it’s surprising that other jurisdictions are interested.

That said, Australia has reached out to India, Canada, France, Finland and the UK to position itself as a legislative maverick and drum up support for the media code.

Steven Guilbeault, Minister of Canadian Heritage, has said he’s encouraged by the Australian approach and intends to introduce similar measures.

In Europe, Microsoft has formed an informal coalition with the European Publishers Council, News Media Europe and the associations for European magazine and newspaper publishers to develop an Australian-style arbitration system that would force big tech to pay for news.

In the UK, the former chair of the Commons digital, culture, media and sport committee, Damien Collins has also come out in favour of the Australian law.

Writing in the Daily Mail, Mr Collins welcomed Microsoft’s engagement, and Google’s partnership deals with some publishers, but insisted on transparency. “What’s absolutely crucial is that any deals of this kind must be totally transparent, open to independent arbitration and not exclude other news organisations in the future.”

That’s a dig at Google’s recent deals with French publishers, in case you were wondering, details of which weren’t disclosed.

So why all the support for an impossible law that subsidises old media business models with the profits of digital advertising giants?

My read is a simple one: this legislation is popular because it’s making big tech squirm. Having refused to recognise the damage they can cause to the democratic process, refused to turn up to many parliamentary hearings, failed to counter claims that they don’t pay their fair share of tax, and failed to police their own platforms, big tech companies and their executives are being brought to heel by any means necessary.

In this instance, it’s via a weak point where they seem to be willing to accept an inequitable balance of power and negotiate with publishers, due. It’s like how Al Capone was convicted of tax evasion, rather than more serious crimes.

But even if it seems like there are short-term benefits, bad legislation will always result in bad outcomes.

The Australian approach may seem like a fast moving bandwagon that looks good to law makers across the globe. But what are the odds that this approach ends up prioritising speed over thinking through unintended consequences. Yes, this could be the legislative version of ‘move fast and break things’?

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