Australia’s New Soft Power: Bargaining Codes Start to Spread Globally

Anya Schiffrin is the director of the media and technology specialization at Columbia University’s School of International and Public Affairs.

Two years after Australia passed its News Media Bargaining Code, which pushed Google and Meta to inject some $140 million US dollars into the Australian news media ecosystem, other countries are set to move ahead with their own versions of the law. Canada and the UK are expected to pass bills by the end of the year. Bargaining Codes have become a hot topic in South Africa, while a vote on a Brazilian law is expected on May 2.

Australian academic Andrea Carson describes Australia’s code as “world-first legislation” because it is based on competition (antitrust) rather than copyright laws. The proposal was met with strong resistance by Google and Facebook (now Meta), possibly because they were afraid the idea would spread. Facebook even cut off Australian news for a few days in 2021 despite public emergencies including bushfires and the COVID-19 pandemic. The law came into effect shortly afterwards, in March 2021, and since then more than 30 agreements have been signed covering dozens of outlets. An Australian Treasury review in December 2022 called the Code a “success” and recommended that it be expanded in the future. The report noted that most of the deals were struck by Google while Meta provided much less funding. (Journalists interviewed for this article said that Google is now offering to set up funds to support journalism in South Africa and Brazil in an apparent effort to forestall legislation in those countries.)

The main criticisms of the Australian code are that it didn’t include a transparency requirement so the size of the deals with specific publishers is unknown. Nor are the outlets required to spend the money they get on hiring journalists or boosting their coverage of news despite the code’s explicit purpose “to help support the sustainability of public interest journalism in Australia.”

The Canadian law, C-18, will require participating companies to report their deals to a regulator and includes an amendment ensuring that the funding goes to staffing up newsrooms. Brazil’s law, largely drafted by media power house O Globo (which stands to benefit), does not include transparency requirements.

Brazil’s passage of a code would be part of a larger overhaul of media and tech regulations. Lawmakers there are racing to update the Marco Civil and pass new legislation that would affect both big tech and the news media, with voting in the house expected in the next couple of weeks. As well, the Supreme Court is expected to hear cases about tech platform liability.

As happened in Australia, Brazil is experiencing a division between the big media outlets and the independent media outlets who fear that the large outlets would get most of the funding.

“The ‘mainstream media’ favors the bargaining code. Rupert Murdoch’s News Corp Australia, which owns most of Australia’s daily newspapers, campaigned aggressively for the bargaining code. Most of the independent media would like to have a fund that would be managed by an independent entity, not linked to the government, but with government representatives,” Folha columnist Patrícia Campos Mello said at a recent panel I organized at the International Journalism Festival in Perugia, Italy.

Natalia Viana, president of the Brazilian Association of Digital Journalism (AJOR), has been in conversation with Google and agrees that a fund would be the preferred option. However, she said in a Whatsapp message that “if a bargaining code ends up being approved it is still better than no regulation and no financial obligation. Then the fight will be for full transparency, collective bargaining for everyone and the most diverse distribution of funds possible.”

Google opposes the measure, as does Meta.

In March, the South Africa’s Competition Authority announced an inquiry into the distribution of news by the social media platforms. This is widely seen as a first step towards planning some sort of regulation. As in Brazil, Google has been talking to online outlets and offering to set up a fund to support independent media. Exact amounts have not yet been published, but the efforts are viewed as a way of gaining support from online news media companies so they won’t support a law.

In South Africa, Styli Charalambous, publisher of the online Daily Maverick, has been involved in the discussions with Google and said, in an email to me, that he wants to see smaller outlets benefit.

"It's important to support a diverse range of publishers, particularly those who follow our industry standards and ethics. We eagerly anticipate the outcome and hope it will make a significant and ongoing contribution to the sustainability of journalism."

However, Courtney Radsch, a fellow at UCLA Institute for Technology, Law and Policy (and a member of the Tech Policy Press board), points out that even when there is consensus on the need for tech companies to pay for journalism, how to spend the money – and on what – is still a thorny question.

“Is it reporters? Does it include the editors? Does it include the admin people who process their healthcare and paychecks?” One of the most pivotal questions, according to Radsch, is how to design regulatory interventions that insulate news media beneficiaries from undue political pressure, from both government and platforms.

Canada’s bill will be a significant improvement on Australia’s Code as it tries to answer some of these questions and improve transparency, according to Phaedra de Saint-Rome from the Centre for Media, Technology & Democracy at McGill University. The C-18 bill places obligations on all parties: in order to qualify news publishers have to follow a set of journalistic standards. If platforms want to be exempted from arbitration, then they will need to report the terms of the deals they’ve made. The regulator, the Canadian Radio Telecommunications Commission, will need to regularly report on the aggregated impact of these deals on the journalism market in Canada.

In the UK, Jonathan Heawood, director of the Public Interest News Foundation, says he expects a code by year-end as part of a larger package of legislation aimed at addressing the monopoly power of big tech.

”We care about the quality of journalism, not just big publishers," said Heawood. "We want to see small publishers benefit from the new regulation and we want the outcome to be improved quality and quantity of journalism, not just money flowing from one very big company to another very big company.”

Pierrick Judeaux, director of portfolio for the new International Fund for Public Interest Media noted recently that Australia’s News Media Bargaining Code has become part of the country’s “soft power”. Indeed the code’s architect, Rod Sims, and others involved have become ambassadors for the Code appearing on panels around the world and countering some of Google’s often inaccurate talking points. So far Australia’s efforts seem to be having an effect but Sims, and others, warn that the Big Tech pushback is a mighty thing.