The trouble with the media bargaining code

The proposed news media bargaining code tabled last week has been praised by many journalists. It’s also deeply flawed.

The scheme requires that organisations apply to the Australian Media and Communications Authority to become a ‘registered news business.’ To do so, the organisation must meet a range of criteria: reach a revenue threshold of $150,000 p/a, have a primary purpose of providing core news content to Australian audiences, and be covered by relevant professional standards. Once registered, the business becomes entitled to certain things from specific digital platforms. This includes access to information about changes in algorithms that might affect referral traffic, for example, but also, critically, access to a bargaining and arbitration regime with respect to remuneration for making news content published by news businesses available on digital platforms.

In essence, this bill proposes to mandate payment to media companies for content appearing on digital platforms, unless the parties can agree between them a fair bargain.

There are some problems with this approach, and it’s useful to begin with a consideration of the problem that this regime is trying to address.

Advertising revenue supported news production for most of the twentieth century. This was not without implications for democracy, as the journalistic imperative did not always align with the interests of those who paid the bills. It also gave news organisations particular status as gatekeepers of information. In the twenty-first century, all that has changed, with the majority of advertising spend flowing away from media organisations and towards digital platforms.

This has created two problems. First, journalism is in decline. Regional and country media is the most obvious example, but also particular beats – like the courts or science – are significantly less well serviced compared to just two decades ago. At the same time, clickbait is on the rise as the political economy of the web incentivised seeking impressions. The gutting of a key source of revenue for media organisations means that important stories do not get reported.

Secondly, digital platforms have become the new gatekeepers of information, a troublesome development for several reasons. The business model that drives these platforms has incentivised extremism and expanded filter bubbles to a historically unprecedented degree. The platforms have remained tight-lipped about these issues, making it hard to even discuss them on any kind of common ground.

The owners of these platforms have not contended with the immense challenges posed by their dominance, and instead prefer to obfuscate and conceal. Cambridge Analytica is one example of Facebook letting an organisation manipulate their platform for political gain, but consider also the damning recent memo by a former Facebook staffer responsible for tackling disinformation in elections around the world. It’s clear the problems are vast and complex and the resources devoted to addressing them are woefully insufficient.

The proposed media code tries to address both these problems, but, I would argue, fails in both instances.

Journalism needs to be better funded. However, setting up a somewhat arbitrary system of private transfers is an odd way to go about it. There a many possible alternatives to fund journalism: the government could offer tax incentives to media companies, it could fund cadet journalists like it does PhD students, or it could set up foundations to support regional and specialised reporting. Instead, this proposal favours established players like – you guessed it – News Ltd. There is no guarantee that recipients of revenue under the code will devote these funds to the gaps in the existing media landscape. Indeed, it might even encourage news organisations to optimise their content damning in accordance with the incentives created by the code.

A common refrain from supporters of the proposed code is that this is the beginning, the first step in a better direction, rather than a comprehensive solution. We have been told to get over our distaste for a policy that enriches Murdoch. But it is a first step in the wrong direction. It is a model that will serve to entrench a model of media production based on data extractivism. In essence, the code allows news organisations to learn more about how tech companies have maximised the profitability of the web. It creates a relationship of mutual dependence between digital platforms and news organisations, furthering the endless commodification of users at the expense of democracy.

The other, obvious approach is to properly fund the public broadcaster. ABC and SBS were accommodated in the drafting late in the piece as something of a concession, but we should be careful what we wish for. A new source of revenue has the potential to serve as a justification for yet more cuts. It’s clear – not least because of recent health and safety crises like the bushfires and Covid-19 – that the public broadcaster provides and essential service and should be funded properly.

Holding big tech accountable, and arresting their accumulation of power, is a noble pursuit better served with other strategies. As I see it, there are two options: target their business model or target their profits.

One of the best ways we can pursue the first strategy is by regulating the flow of personal information, giving users rights that prevent the trading of their data. This would undermine the market for eyeballs, and allow other potential modes of operation to come to the fore. Targeting the profits of digital platforms is trickier because so much of them flow offshore. France experimented with a tax on local revenue, rather than profits. Public investment in the local technology sector may also serve to decrease our dependence on platforms based overseas.

We need a diverse and flourishing media landscape, in which new content providers can make use of the incredible potential of the web and in which the historic role of journalism to speak truth to power is afforded protection and respect. Unfortunately, the proposed media code may take us in the opposite direction.  


Image: Flickr

Lizzie O'Shea

Lizzie O’Shea is a lawyer. Her book Future Histories (Verso 2019) is about the politics and history of technology.

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