Big Billy-Goat Gruff gives trolls a good kicking

Trolls beware: They’re coming to get you…if you live in Australia.

On Sunday, Australian Prime Minister Scott Morrison announced the latest measure to make social media platforms behave reasonably. He said legislation would be introduced to the Australian Parliament requiring platforms like Facebook to have robust complaints procedures and requiring them to ‘unmask’ anonymous accounts which disseminate offensive and defamatory content. If the companies do not comply, the federal court will be given the power to require disclosure.

The move will effectively overturn an earlier High Court ruling relating to posts on mainstream news media Facebook pages. It found the news publishers responsible for comments made by users on their pages. The federal announcement will ensure that social media companies themselves will be held accountable for harmful comments on their platforms.

This means that the platforms could face hefty claims for defamation if they do not deal effectively with complaints and reveal the identity of anonymous users whose posts harm or defame people. The trolls themselves also face potential defamation proceedings once unmasked.

The government announcement comes own the back of a national survey that found 74 per cent of Australians thought it needed to be easier to make a complaint, and 60 per cent felt there was not much they could do when something went wrong online. Meanwhile 79 per cent thought digital platforms should be responsible for the content on their sites, and only 27 per cent believed the government was doing enough to make sure digital platforms did the right thing.

The Australian government’s proposal does, however, face one potential hurdle that has been identified by Opposition leader, Anthony Albanese. While acknowledging the need for action, he raises the issue of people simply closing their Australian social media accounts and restarting with a global ISP address. It’s a good point. Maybe the answer is to treat identity concealment to avoid prosecution or civil action as a crime, like tax evasion and money laundering.

The plan may have fishhooks, but it is very much a step in the right direction. Anonymity is the resort of cowards when it is used to hurt others. My instinct is to say that anonymity has no place on social media, but I concede there are times when it has worked in the public interest. The more successful outcomes of the Arab Spring (such as Tunisia’s admittedly stumbling march toward democracy) is a case in point. So, too, is the need to provide some safe haven for the abused and deprived can have a voice.

That, however, should not provide an undeserved cloak for the digital version of those who hold a poison pen and protection to those who provide the ‘paper’ on which they write.

Collective strength

Australia’s raft of moves against the social media giants stands in contrast to the lack of will on the part of the New Zealand government to take them on at any level below hate speech and the promotion of terrorism.

Not least of the issues is the way in which Facebook and Google, in particular, make huge amounts of money off the back of New Zealand news media content for which they do not pay.

Now, the country’s newspaper companies have asked the Commerce Commission to grant them the right to bargain collectively with Facebook and Google over payment for content. The case they have put is compelling.

They are doing so in the absence of the sort of negotiating framework imposed on the social media giants by Canberra. The only ‘assistance’ so far provided by our government has been a rather limp statement from Communications Minister Kris Faafoi encouraging Google and Facebook to engage with media entities to reach “equitable arrangements” for content usage.

I think the government is conflicted. It owes a lot to social media as a way of communicating directly with the electorate. Jacinda Ardern was last year dubbed “the Facebook Prime Minister”. At the weekend she had 1.9 million Facebook and 1.7 million Instagram followers plus 787,600 Twitter followers. By contrast, Judith Collins had 76,380 Facebook followers and Simon Bridges 55,801.

It is showing every sign of being more than happy for our news media to reach their own arrangements with the platforms.

‘Collective bargaining’ may be a blast from the past and something that the commission doesn’t particularly like because it has the whiff of cartel about it. However, it represents the best chance that our media have of reaching anything even remotely approaching a fair deal with the social media giants.

Under the umbrella of the News Publishers Association, the publishers have put a strong case to the commission to authorise a joint negotiating position and equally strongly argue that it isn’t a cartel arrangement because it does not diminish market competition.

Far from it. Market dominance sits on the other side of the negotiating table, principally with the two companies that have siphoned off a staggering amount of New Zealand advertising revenue, thanks in no small measure to the content that, for years, they have freely appropriated from New Zealand media.

Twenty years ago, New Zealand advertising spending was creeping toward $1.5 billion, and the interactive (for that read digital) component was zero. A decade ago, the total was close to $2.2 billion, with television and newspapers each taking around 28 percent (TV was slightly ahead), digital (both local media and international services) 15 per cent, and radio a further 11 per cent. The Advertising Standards Authority reported that the total spend last year was $2.45 billion (remember, it was Covid affected) and “digital only” – for that you can largely read Google and Facebook ­– took half of it or $1.2 billion. The combined direct digital advertising revenue for New Zealand newspapers, television and radio was only $135 million or 5.5 per cent of the total spend.

Ask yourself what that picture would look like if Facebook and Google were not part of the equation. That, of course, ignores the likelihood that some other digital rival would come in to eat the media’s lunch. However, think of the money that would be available to sustain the journalistic resources and newsroom numbers we had 20 years ago if their ilk had not been able to plunder the market while treating private goods as if they were as ‘open access’ as the high seas.

To demonstrate the power imbalance between Google/Facebook and media companies, the NPA application to the Commerce Commission draws heavily on investigations by the competition counterpart across the Tasman, the Australian Competition and Consumer Commission.

The ACCC had found that news media businesses were unable to negotiate fairly for a share of the revenue generated by the digital platforms and to which their news content contributed. It found the platforms used that content in ways that maximised their revenue while offering media companies direct access to formats that minimised the advertising potential. They collected and used consumer data for their own benefit and would not share that or the algorithms that maximised those benefits. The ACCC doubted the media companies had sufficient bargaining power to negotiate individually and called on the government to bring in a code of conduct, which it duly did.

The major Australian commercial operators have reached confidential deals, but 18 smaller media companies are having to club together as the Public Interest Publishers Alliance (with help from a mining billionaire) to get any negotiating traction with the platforms.

Australia’s major media players are significantly larger than any in this country. It is little wonder the applicants to the Commerce Commission are seeking a collective solution similar to the alliance.

Some digital start-ups are rumoured to have already reached agreements with Facebook., Others, such as The Spinoff, have indicated an interest in joining the NPA initiative if it gets Commerce Commission approval. Frankly, the more who get on board, the better off New Zealand will be in the long run.

However, the applicants rule out joining forces with either government-owned media (TVNZ, RNZ and Māori Television) or foreign-owned companies (Discovery aka TV3). That is understandable. State ownership could complicate negotiations, as could a US-registered company.

There is also provision in the NPA agreement for individual companies to pursue their own negotiations with the digital giants. On Friday, New Zealand Herald publisher NZME confirmed to the Stock Exchange that it has already been negotiating with what it calls the Global Digital Platforms but conceded the engagements were “at a very early stage”. It reiterated its support for the NPA application to the Commerce Commission but may continue to engage directly because the commission’s determination could be months away.

That is an understandable position to take but I hope it does not open the way for Facebook and Google to divide and rule. The details of their negotiations with Australian companies have been kept secret. We don’t know if News Corp’s global deal has delivered – for the same level of content – substantially more in Australia than the agreements with relatively smaller local companies that lack Murdoch’s clout.

That is the downside of secretive individual deals. It may deliver more to some and less to others. That is the international trend in dealing with the platforms that has been identified by the co-director of AUT’s Centre for Journalism, Media and Democracy, Dr Merja Myllylahti. Her paper on the subject can be accessed here: .

Collective bargaining could provide a more equitable outcome. No-one should be under any illusion, however, that Facebook and Google will be model negotiators. Their record is one of bullying, arrogance and obfuscation. The greater the pressure that can be brought to bear against them, the better.

The precedents are there. A fortnight ago there was an announcement in Paris that Google had agreed to pay wire service Agence France Presse for content. It happened after the EU passed laws compelling payment deals and France’s competition authority fined Google €500 million ($NZ827 million) for failing to negotiate in good faith. Google appealed the fine but the point had been made.

By comparison with European and Australian players, New Zealand is in the minor league. It needs all the strength it can muster to get equitable outcomes from the likes of Mark Zuckerberg and Larry Page. Step one will be the commission giving NPA the green light. Step two will be the New Zealand government behaving a little more like its Australian and European counterparts.


To Tom Dillane for an absorbing, detailed investigation in the Weekend Herald into the factors leading to the tragic suicide of high performance cyclist Olivia Podmore. Sympathetically written, it nonetheless pulled no punches in examining the months leading up to her death.



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