Antitrust Law Daily Australia’s competition agency accuses Google of misinformation over draft news media bargaining code
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Monday, August 17, 2020

Australia’s competition agency accuses Google of misinformation over draft news media bargaining code

By Jeffrey May, J.D.

ACCC proposal would require Google and Facebook to pay Australian media for news content.

In an open letter to Australians, Google today said that a new government regulation proposed by the Australian Competition and Consumer Commission (ACCC) on July 31 would force the company to provide a dramatically worse Google Search and YouTube, could lead to customers' data being handed over to big news businesses, and would put free services at risk. Under the proposal, Australian media would be able to bargain with Google and Facebook to secure fair payment for news content. The ACCC has responded to Google, saying that the open letter contains misinformation about the proposal.

The ACCC took issue with Google’s description of the proposed code. According to the ACCC, Google will not be required to charge Australians for the use of its free services such as Google Search and YouTube, unless it chooses to do so, and Google will not be required to share any additional user data with Australian news businesses, unless it chooses to do so.

The draft news media bargaining code is aimed at addressing acute bargaining power imbalances between Australian news businesses and Google and Facebook, including through a binding "final offer" arbitration process. In 2019, the ACCC released a report on its Digital Platforms Inquiry, which offered, among other things, a series of recommendations to address the digital platforms’ impact on Australian media businesses and how Australians access news.

In December 2019, the Australian government asked the ACCC to work with Google and Facebook and news media businesses to develop and implement voluntary codes of conduct. In April 2020, the government directed the ACCC to develop a mandatory code of conduct after the competition agency reported that the core issue of payment for content was highly unlikely to be resolved through this voluntary process. Public comment on the proposal, which would amend the Competition and Consumer Act of 2010, will be accepted through August 28.

Efforts to obtain payments for French media. Google is facing similar issues in Europe. In France, a 2019 copyright law required negotiations between publishers, news agencies, and digital platforms on payment for content. News outlets complained to the French Autoriteì de la concurrence that Google unilaterally decided to no longer display article extracts and other content unless the publishers granted it the authorization to use the content free of charge. In April 2020, the agency announced its preliminary position that Google may have abused its dominant position in the market for general search services by imposing unfair trading conditions on publishers and news agencies. Until the adoption by the agency of its decision on the merits, an interim measure requires Google to negotiate in good faith with the publishers and news agencies that request it.

Companies: Google LLC; Alphabet Inc.; Facebook, Inc.

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