Media companies such as News Corp and Nine will benefit from a new draft code of conduct for digital giants, but News' nemesis the ABC would be excluded.
First details of the code have been released this morning by the Australian Competition and Consumer Commission, the treasurer and the minister for communications, cyber safety and the arts, with a consultation period due to end on August 28.
While they provide legal backing to individual bargaining arrangements, it appears each commercial media organisation - provided it has turnover of more than $150,000 a year - will have to negotiate an "appropriate payment" for news content, with binding arbitration available if they can't agree.
The legislation does not support public broadcasters "as they are principally funded by government and not through advertising revenue" although minimum standards for "non-remuneration matters" will be set out. Public broadcaster the ABC has become an alternative - sometimes the only alternative - source of local news to News' paywall-restricted websites, following its closure of numerous regional print editions.
Nor is there any automatic right to payment, as might have been provided by copyright laws.
The draft code of conduct has been welcomed by News Corp Australasia executive chairman Michael Miller as "a watershed moment".
He said the tech platforms' "days of free-riding on other peoples' content are ending.
"They derive immense benefit from using news content created by others and it is time for them to stop denying this fundamental truth." The code could force platforms to play by the same rules other companies willingly follow and it ultimately means they will no longer be able to use their power to walk away from negotiations with news creators.
ACCC Chair Rod Sims said the 88 "smaller media businesses" which teamed up to submit a joint submission in developing the code could again work together to negotiate with the platforms over fair payment for their content.
"News content brings significant benefits to the digital platforms, far beyond the limited direct revenue generated from advertising shown against a news item. News media businesses should be paid a fair amount in return for these benefits," Sims said.
"We believe that our final offer arbitration proposal provides a compelling incentive for parties to put forward fair and reasonable proposals, given each has just one chance to make an offer, and only one offer can prevail."
He said the cost of producing journalism would be taken into account in arbitration, but an arbitrator would also have to consider whether proposals placed an undue financial burden on the digital platforms.
Digital platforms would have to give news media businesses 28 days' notice of algorithm changes likely to materially affect referral traffic to news, algorithm changes designed to affect ranking of news behind paywalls, and substantial changes to the display and presentation of news, and advertising directly associated with news.
In addition, the platforms must give news media businesses clear information about the data they collect through users' interactions with news on digital platforms; for example how long users spend on an article, how many articles they consume in a certain time period, and other information about user engagement with news content across digital platform services.
The platforms would also be required to publish proposals for how they would recognise original news content on their services. They would also need to provide news media businesses with flexible user comment moderation tools, including an ability to "turn off" comments on individual stories they post to digital platforms.
The minimum standards would also allow news media businesses to prevent their news content being included on any individual digital platform service.
Breaches of these standards would be subject to potential enforcement action by the ACCC.
News media businesses and news content covered by the draft code
The ACMA would use set criteria to determine which Australian news media businesses are eligible under the draft code.
Media businesses would be eligible if the online news content they produce investigates and explains issues of public significance for Australians; issues that engage Australians in public debate and inform democratic decision-making; or issues relating to community and local events.
In addition, they must adhere to minimum levels of professional editorial standards, and maintain a suitable degree of editorial independence; operate in Australia for the main purpose of serving Australian audiences; and generate revenue of more than $150,000 per year.
The code is not intended to capture any non-news media content, such as drama, reality television, entertainment content or sports broadcasting.
The draft code was called for on April 20 as part of the government's response to the ACCC's Digital Platforms Inquiry final report to promote competition, enhance consumer protection and support a sustainable Australian media landscape in the digital age.
In its final report the ACCC identified that Facebook and Google have each become unavoidable trading partners for Australian news media businesses in reaching audiences online, resulting in an imbalance in bargaining power.
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