Some time this week Broadcasting Minister Willie Jackson will set the cat among the kiwis. He will introduce the Digital Bargaining Bill to Parliament.
The Bill is expected to mirror legislation passed in Australia and Canada that forces digital platforms to negotiate fairly, and in good faith, with news organisations for the use of their news content.
The passage of legislation in those countries prompted immediate strong-arm reactions from Meta, the owner of Facebook and Instagram, and ominous rumblings from Alphabet, the owner of Google.
Days before Australia’s News Media and Digital Platforms Mandatory Bargaining Code came into force in 2021, Facebook cut access to all news content for Australian users. It flailed around and banned everything it thought was Australian news. That included some government pages and even a page of advice on bike trails.
The total news ban lasted only a few days. It was lifted after a sizeable negative worldwide public reaction and assurances to Meta that the code would not be invoked by the Australian Government if the platform owners negotiated in good faith. Google had already blinked and had done deals with Australian media companies.
Canada’s Online News Act was given the Royal Assent in July and at the beginning of August Meta blocked Canadians’ access to news on Facebook and Instagram. Google has warned it could remove Canadian news from its platforms in Canada when the law takes effect (up to 180 days from the Royal Assent). However, Google’s owner is still negotiating with the Canadian Government over the regulations that would flow from the law. Meta has not joined those discussions.
A coalition of the country’s broadcasters and publishers last week asked the Competition Bureau to investigate the ban and use its powers to force Meta to reverse course.
The coalition’s letter to the bureau argued that social media platforms are so dominant they are now a critical way for news organisations to reach people. The letter stated: “Having positioned itself as an unavoidable intermediary or gatekeeper between news organisations and their audiences, Meta’s blocking of news content removes a critical channel through which Canadian news organisations distribute their news content.”
In July, French-language Montreal newspaper Le Devoir reported Meta’s head of public policy in Canada, Rachel Curran, as saying she was “super optimistic” that the Canadian Government would alter the Bill. That did not happen.
Meta’s bully tactics are leading to a hardening of attitudes by both governments and media organisations.
Although the Australian Government made soothing noises over its platform news legislation, Meta has faced a series of legal issues across the Tasman. Last month a federal court ordered it to pay fines totalling $A20 million for collecting user data through a smartphone application without disclosing its actions. It still faces a civil action by the Office of the Information Commissioner over its dealings in Australia with Cambridge Analytica, the British political consulting firm exposed as working with Facebook to gather user information (primarily for political advertising purposes) without their consent.
Canada shows no sign of capitulating in the face of Meta’s bans. Heritage Minister Pascale St-Onge said Meta has refused to participate in the regulatory process. “This is irresponsible. They would rather block their users from accessing good quality and local news instead of paying their fair share to news organizations.” St-Onge said the government will continue to “stand its ground”. It has announced it will pull all federal government advertising from Facebook and Instagram.
In an interview with Stuff’s Tom Pullar-Strecker last December, Willie Jackson said the New Zealand law would be “a bit of a hybrid” of the Australian and Canadian legislation. “It’s going to be pretty broad,” he said. “Companies will need to meet ‘professional standards’, for example through membership of the Media Council, and produce news content aimed at New Zealand audiences [to qualify for the Act’s protection].”
The Canadian legislation provides several key points to watch for when the Bill comes before the House this week.
Will it include Canada’s planned provision for regulations setting a financial threshold for the contributions to be made the social media platforms? Ottawa has indicated it believes that the threshold should be based on a platform’s estimated Canadian revenue and would be specific to each platform and their position within the news marketplace.
Will it provide for collective bargaining? Although NZME broke ranks on early efforts here to joint forces in dealing with the platform giants – leading to other news organisations having to likewise do individual deals – collective negotiation is a key to bargaining strength.
Will it include provision for the Government to reject any offers between platforms and news organisations? The Canadian law contains strike out provisions if an offer shows undue influence, unfairness, or could result in serious detriment to the provision of news content.
Both the Canadian and Australian laws make ample provision for good faith bargaining between the parties without the intervention of the State. It is clear, however, that these multinational platforms (and Meta in particular) are unafraid to use their immense power to intimidate and to wear down news organisations to a point where any payments are from the petty cash box. The State as a reserve power is not only desirable, but also a necessity.
These platforms are more than capable of acting unilaterally, irrespective of any agreements that may be in place. Earlier this year, for example, Facebook altered its algorithms in New Zealand to place less emphasis on news in its offering to users. The effect was obvious in news organisations’ online analytics. Was it a warning of things to come if New Zealand followed its Commonwealth partners and proceeded with the Digital Bargaining Bill?
All of our news organisations need the protection that such legislation will afford even if they have agreements with the platforms. Those agreements will last only as long as the platforms want them to, and they will not prevent the equivalent of a Canadian plug-pulling.
Opponents of the Canadian law say it will cost the news media dearly. Perhaps so, but where do we draw the line in dealing with ungoverned (ungovernable) transnational entities who continue to accrue power because they will only deal with the world on their own terms?
The National Party’s attitude to the news that the Bill will be tabled is unhelpful. Its broadcasting spokesperson Melissa Lee told Pullar-Strecker in December that while the party was in favour of pragmatic solutions, it would need to see the legislation before deciding to support it. It has not stated it will not support the Bill, but last week Melissa Lee told Stuff she didn’t see what good would come from “forcing people to negotiate”. That’s as near as dammit to a ‘no’ in my book.
The Bill will be introduced this week but there is no chance that it can be passed within the present term of Parliament. It will sit on the order paper until a new government is installed after the election.
If National leads that government, it should not cast out the Digital Bargaining Bill until it has compared Facebook’s actions in Canada with what its founder and CEO Mark Zuckerberg said in a much-vaunted essay “Building Global Communities” a couple of years ago. In it he said:
A strong news industry is also critical to building an informed community. Giving people a voice is not enough without having people dedicated to uncovering new information and analyzing it. There is more we must do to support the news industry to make sure this vital social function is sustainable — from growing local news, to developing formats best suited to mobile devices, to improving the range of business models news organizations rely on.
He has an extremely odd way of showing that support.