Global Digital Lords and Privatisation of Media Policy: The Australian Media Bargaining Code

Abstract

After two decades of regulatory vacuum, powerful digital platforms such as Google and Meta/Facebook, also known as the “Digital Lords” (Brevini 2020), have faced growing criticism worldwide. They are accused of possessing excessive economic, political, and ideological influence while evading public accountability. Although there have been calls to address their monopolistic market dominance, such as antitrust measures to break their stranglehold on data, the most tangible interventions have focused on policy tools to make the Digital Lords contribute to journalism. With governments hesitant to allocate public funds for public interest journalism, policymakers in various countries are exploring avenues to make these wealthy and tax-avoiding Digital Lords pay for the news they distribute. The “Journalism Competition and Preservation Act” is presently being deliberated in Congress in the United States, with the objective of aiding small and mid-sized news organizations in their negotiations with digital platforms for fair compensation for the utilization of their content. The European Union has implemented a copyright reform granting press publishers the right to be remunerated by Digital Lords for the use of newspapers and magazines. One widely discussed policy tool in this regard is the Australian “News Media Bargaining Code.” This article examines the successes and failures of the code, adopted a year and a half ago, in addressing Australia's journalism crisis and its pressing issues of media diversity and news scarcity. Ultimately, it argues that the Australian Media Bargaining Code exemplifies the progressive privatization of media policy.

KEYWORDS:

• Digital lords
• tech giants
• news media bargaining code
• privatisation
• media policy

Introduction

A few years ago, Edwin Baker powerfully asserted that a country is only truly “democratic” if the media are “structurally egalitarian and politically salient” (Baker 2007, 7). Further, he offered the “democratic distribution principle” for communicative power as a crucial pillar of how media system should work, following “a very wide and fair dispersal of power and ubiquitous opportunities to present preferences, views, visions,” a maximum dispersal of ownership (Baker 2007, 7). But, as I argued in previous works (Brevini and Schlosberg 2016; Brevini 2015) in order to maintain a “democratic distribution of voices” we can’t only rely on the market: we need a set of policy interventions in the public interest (Fenton and Freedman 2022). As Barnett (2009) further elucidates, diversity of ownership does not inherently guarantee that it serves the public interest, as it might not produce a wide range of editorial voices that provide diverse and competing perspectives. As a result, the only solution is a set of media policies that combines public funding, commercial, non-commercial, in line with a “robust and properly implemented” understanding of the public interest and its value within a democracy (Barnett 2009, 14).

As present neoliberal governments in the West are increasingly resisting using public funds to sustain public interest journalism, policymakers in various countries are exploring methods to compel affluent and tax-evading Digital Lords (Brevini 2020) of the West (also known as Tech Giants) to finance the news they distribute. These current policy discussions are of course to be understood in the context of the lack of effective global governance to kerb the unchallenged power of Digital Lords who have a consolidated monopoly of digital market (Vaidhyanathan 2018). This article explores the global emerging conversations on the new policy instruments developed to compel Digital Lords to contribute to journalism. After discussing global trends concerning the continuous structural crisis of journalism, the article explores the most widely talked-about policy instrument to compel Digital Lords to support news, the globally renowned Australian “News Media Bargaining Code.”

The Structural Crisis of News Institutions in the West

The COVID-19 outbreak and consequent economic shake up has only accelerated the structural crisis of news institutions in the West that have seen a progressive and constant decline in the last two decades (Fenton and Freedman 2022). There are two crucial reasons for this structural crisis. Firstly, a massive and continuing market deregulation that has led to increasing concentration of mastheads and secondly, a decline in commercial revenues triggered by a loss in readership and advertising revenues which have been migrating to other media, most notably digital. I will first focus on the first cause.

Although we see prevailing policy rhetoric affirming the crucial relevance of diversity in global governance debates (Brevini and Ward 2021) policy actions in the West, from Europe to the UK, to the US, to Australia seemed to have favoured only industrial standpoints to ownership over public interest and cultural approaches (Barnett 2009). As a consequence, since the ‘80s we can trace in liberal democracies a common trait towards growing media consolidation and deregulation of ownership regimes (Barnett 2009; Brevini and Schlosberg 2016). The continuous deregulation of media systems led to a progressive media concentration of mastheads under the same ownership, leading to fewer jobs in the sector and fewer resources for quality journalism (Brevini and Ward 2021). As a result, news deserts are on the rise in many countries were there isn’t a solid tradition of public investments in news, like the US, for example (Abernathy 2020), disproportionately impacting specific rural regions, communities of colour, and lower socio-economic neighbourhoods: journalist numbers dropped by 60% since 2004 to just before the pandemic (Waldman 2020).

The study News Deserts and Ghost Newspaper: Will Local News Survive? (Abernathy 2020) confirms this desolate landscape for local news in the US and reaffirms the concerns raised by scholars that consolidated media markets tend to have a negative effect on the quality of journalistic output in local communities (Brevini and Ward 2021; Napoli et al. 2018). In particular, the study shows how in big global conglomerates “the prioritization of profit suggests that the journalistic quality of these newspapers has become less important, and scholars have confirmed a perceived decrease in quality of the remaining newspapers serving local markets” (Abernathy 2020, 16). In Australia for example, despite a tradition of Public Service Broadcasting, 106 local and regional newspaper titles closed between 2008 and 2018, a 15% decrease in the total number (Digital Platform Inquiry 2019). Approximately 3000–3200 journalism jobs were lost between 2012 and late-2017 (Brevini 2021). The report Who Controls Our Media (Brevini and Ward 2021) recorded the loss of over 5000 journalism jobs, an estimated 2000 journalist jobs in 2020 alone (Brevini and Ward 2021, 61). Over 200 regional and metropolitan (suburban) media outlets closed or were placed behind paywalls, broadcast newsrooms were also closed or amalgamated (Brevini and Ward 2021).

Public Investments on News and Current Global Debates

Public investment in news media has consistently proven essential to countering the crisis impacting media. In fact, international jurisdictions show a positive correlation between public interventions and a stable local news sector. Countries where public subsidies have been highly employed, for example in, Norway, the Netherlands and Denmark, but also in Southern Europe (notably France), the local news sector has shown more stability (Foster and Bunting 2019).

Subsidies can be direct or indirect. For example, in the Nordic countries, Norway and Denmark have all VAT exemption on newspaper sales, including digital subscriptions. In Sweden, the standard VAT rate is 25 per cent, reduced to 6 per cent for printed newspapers and in 2017 the government stated that it will propose the same level for digital publications. Since the 1970s, Finland has had a zero per cent rate of VAT on sales of subscribed newspapers, but the rate was raised to 10 per cent in 2013 (Allern and Pollack 2019; Adshead et al. 2020).

Canada also offers creative examples of how to address the crisis of news deserts. It has introduced Canadian subsidies for hiring civic journalism reporters in underserved areas and multiple Tax reliefs for news organisations (Adshead et al. 2020).

It is therefore not surprising that, in countries where news deserts are worrisomely on the rise—like for example the US or Australia—the debate on how to support and sustain public interest journalism is gaining traction.

For the first time after years of marketisation and free market doctrine (Curran 2002) we are seeing policy solutions that consider public funds as a pragmatic practice, although still in smaller scales in countries where there is no tradition of public subsidies for journalism.

In the US, for example, the state of New Jersey created the Civic Information Consortium in 2018 in response to the growing local news crisis impacting communities across the state’s 21 counties (Pickard 2020). Led by the non-profit, nonpartisan advocacy organisation Free Press, a broad stakeholder coalition of thousands of residents, universities, journalists, lawmakers and more crafted the Civic Info Bill as a way to fund innovative media and civic-technology projects in New Jersey for decades to come. For the first time in the history of US journalism, five of New Jersey’s leading institutions of higher education—The College of New Jersey, Montclair State University, New Jersey Institute of Technology, Rowan University and Rutgers University have been brought together to address the lack of access to local news and information. The Consortium is eligible for funding from the State of New Jersey and can obtain funds from private foundations, individuals, and other charitable organisations.

From Public Funding to Market Solutions: Bringing Digital Lords in the Picture

I mentioned the combined struggle to secure revenues from ads in digital markets and declining readership as the second root cause to the structural journalism crisis that commercial news outlets are facing. For example, in the US, latest data from the Pew Research Centre’ State of the News report showed how in 2020, the circulation (print and digital) of weekday newspapers was 24.3 million and of Sunday newspapers it was 25.8 million, with a yearly decline of 6%. In contrast, in 1990, the weekday newspaper circulation was 63.2 million and for Sunday newspapers it was 62.6 million (Pew Research 2021).

As commercial news outlets wrestled with digital markets scrambling for solutions to their funding problems, we saw the progressive establishment of the monopoly powers of Tech Giants, which I prefer to refer to as Digital Lords, a concept that captures in a more significant way the unchallenged economic, political and ideological powers they hold (Brevini 2020).

As newspaper revenue plummets the revenue for two Digital Lords alone, Facebook/Meta and Google generated in the US over $200 billion in annual advertising revenues in 2021.

In the US only, Google, with its dominant market position in search and Facebook/Meta which dominates in social media markets combined control 70% of local digital advertising, leaving fewer resources for commercial news outlets (Waldman 2020). In a smaller market like Australia, the Australian Competition Authority (ACCC) found that 100$ spent on advertising, $53 went to Google, $28 to Facebook and $19 to all other websites (ACCC Digital Inquiry report 2019).

Of course, the dominance of the advertising markets is only one of the problems generated by the uncompromising powers of Digital Lords with increased public attacks, growing exponentially since 2016. From the scandals involving Facebook/Meta’s expanding mass data collection and privacy invasions emerged through the Cambridge Analytica revelations; to multiple examples of viral spread of misinformation (Vaidhyanathan 2018) most recently concerning Covid and vaccines, as well as continuous instances of hate speech, lack of care and lack of prompt actions to safeguard users and children emerging from the Frances Hogan’s disclosures (New York Times 2021). And finally, the public condemnations that saw president Biden declaring that these platforms are “killing us” (Biden 2021).

While criticism is rapidly growing, as well as public scrutiny for the misinformation Facebook/Meta amplifies (while benefiting economically from it), solid regulatory interventions that adequately address the monopoly power of Digital Lords still lack consensus, especially in the US context and in global governance. In Europe, the European Commission, arguably the most fearless actor against the Digital Lords’ monopoly, has attempted in multiple occasions to kerb the Lord’s powers by applying antitrust legislation, Privacy laws and eventually with the new Digital Markets Act (European Commission 2022).

In global policy debates, the only type of policy intervention that seems to have gained more traction to limit the power of the Lords are confined to the mainstream arguments that Digital Lords should contribute to journalism.

Clearly, instead of radical interventions in media systems that would require the introduction of a toolkit of regulatory mechanisms to address the structural problems discussed in this article, the focus has switched on addressing the other concurrent source of the crisis: the decrease in advertising revenues of commercial news outlets as opposed to the increasing digital advertising dominance of the Digital Lords of Silicon Valley (Brevini 2020).

In the US, The United States’ News Media Alliance, which represents 200 publishers, has argued for a new framework to allow publishers to collectively negotiate with the Digital Lords. Similarly, the European Union has adopted a copyright reform (EU Copyright Directive 2019) that aims at providing press publishers the right to be remunerated for the use of snippets and links in published articles by platforms (EU Copyright Directive 2019). In Canada the Online News Act, Bill C-18 also advances a similar policy that will require digital platforms who benefit from distributing news publishers’ content to share their revenues with news businesses. The UK and New Zealand are also currently discussing similar interventions.

But the most discussed of such policy tools to make the Digital Lords contribute to news is the now globally famous Australian News Media Bargaining Code that became Law in March 2021 (Australian Media Bargaining Code 2021; Schriffin 2022).

I will now shed light on the policy debate that took place in Australia when the new law was adopted and a preliminary assessment of its success and failure.

The Context of the Policy Debate on the News Media Bargaining Code and the Problem of Media Concentration

The News Media and Digital Platforms Mandatory Bargaining Code Bill (Australian Media Bargaining Code 2021) was introduced to the Australian Parliament in December 2020, although it resulted from a lengthy, contested process started in 2017 between the Competition Authority, Australian Competition and Consumer Commission (ACCC), the Australian Government and Google and Facebook. The competition authority was specifically asked to conduct an inquiry (Digital Platforms Inquiry) and to consider the impact of social media, online search engines, digital platforms on competition in the media and advertising services markets (ACCC 2019 and 2020). One of the key conclusions of the ACCC’s inquiry into digital platforms centred around the inherent power imbalance between news companies and Digital Lords. (ACCC 2020). Although only incidentally linked to the objectives of the Inquiry, the ACCC’s report also paints a stark picture of the state of journalism in Australia (ACCC 2019 and 2020) which has led to another public inquiry conducted by the Australian Senate into the state of media diversity, independence and reliability in Australia (Brevini and Ward 2021). The Senate referred the inquiry in October 2020, after more than 500,000 people signed a petition, created by former Prime Minister Kevin Rudd, that raised concerns about the level of influence wielded by News Corp. The petition was the largest e-petition in Australia’s parliamentary history. The petition’s size highlighted growing public frustration at the overt and covert impact of media concentration on democratic decision-making in Australia. The Media Diversity Inquiry (Brevini 2021) that followed, similarly to Leveson in the UK in 2012, brought once again the global empire of News Corp at centre stage for its monopolist, detrimental impact on a liberal democracy and the request for a Royal Commission into the Murdoch Media (Brevini 2021a).

From the highest point of print diversity, noted by Henry Meyer in the mid-1920s, Australia displayed a steep decline in media pluralism (Mayer 1964, 10): if we consider just the press sector for example, from 21 owners that independently owned 26 capital city daily newspapers Australia is now left with one dominant and two other players controlling two national titles, two dailies in Sydney and Melbourne and one in each of the remaining States and Territory capital cities. Overall, one company, News Corporation is the unchallenged dominant player in print, owning 59% share of the metropolitan and national markets by readership. Nine is second with a combined 23% readership share (Brevini and Ward 2021).

The dominance of News Corporation, in particular, and Nine, extends beyond print to other media platforms and outlets. For example, in the radio sector, three companies and their associated entities, News, Nine and Southern Cross Media, control almost 90% of the lucrative metropolitan radio licences in the country (Brevini and Ward 2021). The predominance of News Corp in cross media settings is unprecedented in liberal democracies. In addition to its overwhelming share in print readership, its related organisations’ radio interests, it has become, in practical terms, Australia’s only subscription broadcasting service, reaching an estimated audience of over 5 million people a week (Brevini and Ward 2021). News Corporation also earns 40% of FTA television advertising and STV subscription and advertising revenues, almost double the next biggest company, Nine Entertainment (Brevini and Ward 2021).

News Corp and Nine are also extending their dominant positions from legacy media into online outlets of digital news and on demand services. For example, News Corp and Nine ranked just after global tech giants in a list of the most powerful digital media owners in Australia (Nielsen 2021; Brevini and Ward 2021). Their unique audience totals of over 16 and 15 million people exceed other entities such as eBay and the Australian Government (Brevini and Ward 2021).

It is worth noting how, despite acknowledging in detail the extent of the journalism crisis in Australia and the need for reform, the ACCC refrains from any specific reference to the problems generated by media concentration and the consequent need for reform. (ACCC 2019; ACCC 2020). This policy silence (Freedman 2010) is clearly aligned with the “free market fundamentalism approach” of the ACCC where the Code gets epitomised as the best possible tool to serve the public good (Phelan 2014, 53).

The News Media Bargaining Code: A Market Solution

Following the ACCC’s inquiry and subsequent report, the Digital Lords and news publishers were tasked with working together to create codes of conduct that would address bargaining power imbalances between major digital platforms (Facebook and Google) and media outlets (Australian News Media Bargaining Code 2021; Schriffin 2022).

The ACCC suggested the codes would then work to create a framework for publishers and digital platforms to negotiate financial remuneration for the use of, and reproduction of, news content (News Media Bargaining Code 2021). However, after the documented failure to reach a voluntary agreement, the Competition Authority (ACCC) drafted a mandatory code that constituted the basis for the News Media Bargaining Code Bill that was tabled in December 2020 (Brevini 2021b).

Specifically, the code establishes that Australian news entities can participate in the code only if they are registered by the Australian Communication and Media Authority (ACMA) with revenues over 150.000 AUS$ per year (Australian News Media Bargaining Code 2021). Publishers have also to demonstrate to produce core news content that reports, investigates or explains:

• 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 (Australian News Media Bargaining Code 2021).

News outlets will also need to show to be editorially independent, be subject to a professional standard and be operating predominantly in Australia.

During the discussion of the bill, Google and Facebook/Meta, singled out as the principle Digital Lords that would have seen the code applied to them, if they were involved in major negotiations with the Australian Government that led to major gains for the Lords. Evidently, the biggest victory was that before a digital platform is made subject to the code, the Treasurer must consider whether it has reached commercial agreements with publishers.

In other words, the Digital Lords Facebook/Meta and Google, won’t be subjected to the code if they strike deals with publishers before the code is applied: this assigns great power to the platforms to negotiate behind closed doors with the publishers they select. It also means that the code might never be applied in practice.¹ In the words of the Treasury (Australia Treasury 2022) “The Code provides incentives for digital platforms and news businesses to reach commercial deals outside of the Code. If that is not possible, it provides a framework (following designation of a digital platform) for good faith negotiations between the parties.” (Australia Treasury 2022, 3). The second great gain for the Digital Lords was that the Law does not mandate how much should be paid for the news. There’s not even a guarantee that news outlets will use the money for news, let alone public interest journalism.

The onus of enacting the law has been shared across a number of Australian governing bodies. While the ACCC is “responsible for administering and enforcing the code” (ACCC 2020), it is up to the Australian media regulator, the Australian Communications and Media Authority (ACMA), to assess the “eligibility of news businesses who want to participate in the code” and appoint “mediators for bargaining and register arbitrators if agreements cannot be made” (ACMA 2021). Additionally, the Australian Treasurer is then tasked with ensuring digital platforms are subject to the Code’s obligations which include compulsory arbitration “where parties cannot come to a negotiated agreement about remuneration relating to the making available of covered news content on designated digital platform services” (Australian Parliament 2021).

The Effects of the Code so far

Firstly, it should be said that the News Media Bargaining Code has in praxis, never been applied to date, as no platforms have been subject to the regulatory “designation” that is effectively forced to arbitration. This means that the Code’s obligations do not currently apply to any digital platform or news business as the Treasurer has never indicated “designated” a specific platform, thus forcing Digital Lords into forced arbitration.²

However, Google and Facebook/Meta reached agreements with a range of large and regional news businesses during the Code’s first year of operation. The Australian federal government has released a first-year operation review of the News Media Bargaining Code in December 2022 (Australian Treasury 2022). The review acknowledges that some commercial agreements were made before the Code formally commenced, but many of them “were made in anticipation of the Code taking effect” (Australian Treasury 2022, 4).

The list of the agreements reached between the Lords and the news organisations have been compiled on the basis of voluntary submissions by the organisations, as the Government, the Media Authority and the Competition Authority (ACCC) did not want to explicitly use their power to secure more details of the deals from the organisations.

The Australian Communication and Media Authority (ACMA) for example clarified some time ago that they “are not privy to or advised of which organisations have actually reached a deal” (Australian Senate 2021). Similarly, the competition authority, the ACCC’s stressed that “the details of these commercial deals are not required to be released, and the ACCC does not have a formal role in monitoring the outcomes” (ACCC 2022).

The Australian Government also declared that “the review has not been provided with the details of these agreements by either digital platforms or the relevant news businesses, despite highlighting the importance of this information in the consultation paper released in April 2022” (Australian Treasury 2022, 8).

In the words of the government, the lack of transparency on these private deals “limits the assessment of the Code’s performance” (Australian Treasury 2022, 8). However, the Review provides a list of the deals reached between the Lords and the news organisations, explaining that Google has reached 23 commercial agreements and Facebook/ Meta 13 (Australian Treasury 2022, 8).

Google’s agreements with the most powerful news organisations in Australia, Nine Entertainment and Seven West Media run for 5 years, and its global agreement with News Corporation runs for 3 years, while no further information on the terms of its agreements with other news businesses.

Likewise, Facebook Meta did not provide details on any of their agreements. Unlike Google, Meta/Facebook has not reached agreements with the second most important Public Service Broadcaster in Australia, Special Broadcasting Service Corporation (SBS) or the news outlet “The Conversation,” explaining that “the budget to support content agreements for these products was limited and it was therefore inevitable that some news businesses would not receive a deal” (Australian Treasury 2022, 8).

The list of the agreements provided by the review to the public (Australian Treasury 2022, 6) does not include any data on the resources allocated for each of these deals and the specific nature of the agreements.

The closest estimate of the funds overall invested was provided by the Chair of the Competition Authority that initiated the Digital Platform Review: in May 2022, the former Chair of the ACCC, Rod Sims, estimated that he is “confident” that commercial agreements have provided over $200 million to news businesses (Sims 2022, 22).³

The most useful details on the agreements were offered by the Australian Public Service Broadcaster ABC that volunteered to report that the deals have financed the appointment of 57 journalists to regional positions, “including reporters in 19 locations, 10 of which did not previously have them” (Australian Treasury 2022, 8). The agreement came shortly after the Australian government withdrew $1.2 billion of funding to the ABC (Wake and Ward 2022).

Of course, the most vocal news organisations, critical of the code, were the publishers, mostly small, that have so far been left out of the agreements. The Conversation, for example, declared that “without providing a reason, Facebook declined to negotiate with The Conversation and SBS, as well as many other quality media companies otherwise eligible under the Code” (Australian Treasury 2022, 7). Similarly, the Association for Commercial Radio echoed that the Code “is not achieving its objectives in relation to the commercial radio industry. Much of the commercial radio industry has experienced significant difficulties in engaging Meta and Google in commercial negotiations. Few benefits have been received as a result of the Mandatory Bargaining Code: 90% of commercial radio networks have been unable to strike a deal with Google; and 95% of commercial radio networks have been unable to strike a deal with Meta” (Australian Treasury 2022, 7).

Concerns Raised by the Australian Media Bargaining Code: Addressing Bargaining Power Imbalance, Not Redistributing Resources for the News Sector

Despite the lack of details on the funds effectively allocated to news organisations, the types and objectives of the deals and their effects, the Treasury Review makes a very important clarification in its Key Findings (Australian Treasury 2022, 13) on the value of the Media Bargaining Code in policy terms.

The aim of the Code was not to address the worrisome problems of news deserts in Australia, nor to “redistribute resources across the news sector or to guarantee that all news businesses receive funding” (Australian Treasury 2022, 13). The aim of the Code was to only “address bargaining power imbalances so as to ensure news businesses receive fair remuneration from digital platforms for the value their content generates” (Australian Treasury 2022, 13).

These considerations translate firstly into the legitimised prioritisation for the Digital Lords of commercial agreements with the biggest news organisation in Australia, as in the words of the Code they generate more value for their content. Secondly, these commercial deals are by nature kept private. In fact, the Treasury clarifies that “by encouraging parties to reach private commercial agreements” and consistently with “standard commercial practice” these agreements typically contain strict confidentiality clauses (Australian treasury 2022, 8).

So, it should come as no surprise that the most dominant Australian media companies have secured profitable deals with Facebook and Google, with Rupert Murdoch’s media empire having benefitted the most, after having intensely campaigned for the Code on the pages of their papers (Brevini and Ward 2021, 36). His media empire has already gained impressive global deals with Google for amounts that in Australia topped 50 billion. Under the terms of the global deal, News Corp titles such the New York Post in the US, The Times, Sunday Times, and The Sun in Britain makes some content available on Google News. Overall, Australia’s three biggest players in print media (News Corp, Nine, and Seven West Media) scored hundreds of millions of dollars in payments from the Lords. Estimates suggest that News Corp, Nine, and Seven West Media will together gain around 90% of Facebook’s and Google’s total contributions under the code (Brevini and Ward 2021, 37).

Evidently, the Code suffers from a series of issues, highlighting the aversion of Australian policymakers to come to terms with the challenges of media diversity, the concentration of ownership, the economic and political power of the media corporations, all comprehensively detailed by Australian Senate’ Media Diversity Inquiry of 2021 (Australian Senate 2021).

The Code’s deficits are particularly laid bare when attempting to ascertain how many agreements have been reached, with what companies, and the value of these arrangements; of which none is clear. The impact on Australia’s Public Service Media (PSM) organisations is also unclear as one PSM institution, the ABC, tries to offset massive Government funding cuts, and the other, SBS, is excluded from the process.

There are not enough data available, over a year after its approval to ascertain whether the News Media Bargaining Code is helping smaller, local and independent media entities. Rather, it may have indirectly bolstered the dominance of already powerful media corporations.

At the same time, there is no clear public strategy which seeks to secure the future of smaller publishers. We rest in the dark as to how the Code affected regional media, including what types of regional and rural publishers have not been able to engage in negotiations.

We know for sure that smaller publishers and important Public Service Broadcasters (SBS) with a relevant regional media presence have been so far excluded from deals with the Digital Lords.

This is, of course, set against the backdrop of a country where one single corporation—an entirely unchallenged dominant player—owns a 59% share of the metropolitan and national print media markets by readership (Brevini and Ward 2021). The industry remains monopolised by dominant media players who offer no tangible evidence that any of the received funds will be invested into quality journalism as the Code offer no guarantee in this regard.

For example, we know from the Parliamentary Inquiry into Australia’s regional newspapers (Australian Parliament 2022) that Google Australia has also launched a Digital News Academy with News Corp Australia which will incorporate online tutorials, formal education, de facto bringing journalism training away from the Media Departments of Australian Universities. According to Parliamentary Inquiry “the Academy will also create opportunities for young journalists, funding 60 new 12-month journalism traineeships in regional Australia over the next three years. In total, the initial roll out will see 750 local and regional news professionals take part over the next three years. The trainees will be drawn from News Corp Australia and a range of small and regional publishers, including Australian Community Media and National Indigenous Times” (Australian Parliament 2022, 83).

Beyond the Australian Example: Considerations on a Tool to Privatise Media Policy

The idea of making Digital Lords contribute to journalism is not a new policy idea. With the Media Reform Coalition, we have argued for a levy on the revenues of Digital Lords during the policy discussion concerning the Leveson Inquiry back in 2012. However, the type of levy proposed by the Media Reform Coalition (2016) would have entailed the creation of a public fund which would redistribute resources to non-profit ventures in a transparent way, with a mandate to produce original local or investigative news reporting.

This proposal implied a clear policy intervention in the public interest to redistribute resources across the news sector, exactly the opposite ethos of the News Media Bargaining Code (Australian Treasury 2022). The proposal would entail clear transparency requirements for the funds provided by the Digital Lords and the type of redistribution of the funds to specific news ventures, with specific obligations of quality and public interest journalism.

Instead, policy interventions like the Media Bargaining Code have the effect of privatising notions of the public good by linking them to market-based logics and practices: the idea of only addressing “a bargaining power imbalance” (ACCC 2020).

Shunning away from a strong public intervention to address the structural problems of media concentration and the lack of diversity that dominates the Australian Media environment (Australian Senate 2021), public policy is instead privatised, outsourced to businesses and private entities through private contracts and negotiations.

This, in turn, represents the final step of a worrisome process that follows a very established trend evidenced by literature. Works by Freedman (2010), Fenton and Freedman (2022), Brevini (2015), Curran and Seaton (2018), McChesney (2004) have been documenting the growing ideological dominance of neoliberalism in media policy in the last forty years. Similar attitudes have been documented in the United Kingdom, where their regulatory “Digital Britain” policy continued to encourage and privilege neoliberal market-centred values of non-interventionism (Freedman 2010). Likewise, McChesney (2004, 19) conclude that there has been a mounting “business domination of media policymaking” that has grown from the neoliberal assertion that markets and profit should sit at the centre of public policy-making.

When this dominant discourse captures every level of media policy making, the possibility of alternative policy imaginaries become utopias (Brevini and Schlosberg 2016) and “policy silences” become normalised (Freedman 2010).

The privatisation of media policy renders impossible for the public to scrutinise the effectiveness of a policy tool. As the Australian Competition Authority has admitted “Treasury will hopefully be able to garner information about where that money is going and how much money is going, and that will be able to inform its review. We agree that things are not transparent at the moment, and hopefully the Treasury will throw a degree of transparency over what’s happened over the last 12 months, since the legislation kicked off” (ACCC 2022). Unfortunately, the much-anticipated Review by the Treasury (Australian Treasury 2022) was not able to address the opacity of the Media Bargaining Code.

Furthermore, the privatisation of media policy leads to a number of “policy silences” (Freedman 2010) that neglect issues of crucial importance. Nobody is questioning to what extent private deals with Digital Lords will encourage more clickbait, sensationalistic and low-quality journalism to be shared, following the profit-driven demands of the Digital Lords. Where are the guaranties that these deals supported by the Digital Lords will generate quality, public interest journalism?

We know too well by now that Digital Lords’ business model favours a type of content that generates more attention (meaning more data and advertising revenues) with very scarce public interest-content being prioritised. Is this the solution that other jurisdictions should adopt to save journalism from its structural crisis? The privatisation of media policy with its opacity and limited market-based scope is never the optimal solution for media policy in the public interest.

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author.

ACKNOWLEDGEMENTS

This article was produced within the framework of the Jean Monnet Network on the European Media and Platforms Policy (EuromediApp), supported by the Erasmus+ Program of the European Union (2021–23).

Additional information

Notes on contributors

Benedetta Brevini

Benedetta Brevini is Associate Professor of Communication and Media at the University of Sydney and Senior Visiting Fellow at the London School of Economics.

Notes

1 According to 52E of Treasury Laws Amendment (News Media Bargaining Code, 2021) the Minister may make, by legislative instrument, a designation determination which means that the Treasurer is able to ‘designate’ certain digital platforms as subject to the obligations under the code. As confirmed in multiple occasions by ACMA, the obligation to negotiate is only enacted at the time a digital platform is designated. As explained by ACMA “To date, no digital platform has been designated under the Bargaining Code. As a result, the Code’s obligations do not currently apply to any digital platform or news business” (ACMA 2022, 4)

2 Please refer to note 1 for more information about “designation”.

3 Although, Rod Sims notes that “I have heard a Google representative say that my estimate of $200m was mere speculation. This is not so. I had contact with most leaders of news media businesses” after they had completed their deals with the digital platforms and discussed ranges of the sums paid with them so I am confident that the amounts paid were over $200m (Sims 2022, 22).