Fixing the News Media and Digital Platform Bargaining Code

The News Media and Digital Platforms Mandatory Bargaining Code (NMDPMBC) of Australia made headlines earlier this year. The Australian government’s new legislation hopes to “[address] bargaining power imbalances between digital platforms and [news businesses.]” It does this by imposing that all digital platforms must pay news organizations for any use of its news products. Including but not limited to merely linking to news.

The Australian legislation has been widely criticized for being “a link tax.” The legislation requires digital platform services to pay for “making available” any portion of news produced by a news organization. It vaguely defines “making content available” as either reproducing something it in full, part, or even just linking to it in any form. The legislation explicitly doesn’t limit itself to any particular use or presentation of the news. A link on a contextual search result page is treated no differently from a link on a news aggregation service.

The underlying issue is that it’s not entirely clear what the legislation is intended to do. It’s difficult to read it as anything but a method of wealth transfer from — mostly foreign — technology companies to Australian news businesses. This may sound unreasonable — because it is. However, keep in mind that tech platforms incorporate and profit from works produced by news businesses.

Services like Google News, Google Discover, and the New-Tab-Page (NTP) in Google Chrome feature imagery, titles, and excerpts produced by news businesses. Google isn’t alone in this. Almost every modern web browser now features news on their NTP. Large aspects of social media platforms like Twitter and Facebook are built around news curation. News is an essential part of the experience, yet the technology vendors don’t pay to reproduce it. They argue that they’re driving exposure and traffic to the news organizations; which they’re undoubtedly doing.

However, the reason why tech platforms feature news in their products is that it’s sticky and habit-building. People stop going to the front pages of their favorite newspapers and instead rely on apps and news aggregators to provide their daily news fix. The trouble is that news organizations spend enormous sums of money to produce the news. Tech companies can source and curate news from thousands of sources and objectively create a better product than any one news organization can provide. Throw in big tech’s click-stream tracking, interest graphs, and personalization and individual news organization don’t stand a chance.

This is a shift in consumer behavior more than anything. News organizations are losing their valuable sometimes-multiple-times-a-day reoccurring visitors. A personalized news stream may be a tool to help pop the “filter bubble” as much as it can be a tool to create it. It’s probably beneficial for the individual news consumer to see news from multiple sources and perspectives.

The aforementioned imbalance in power comes from the power wielded by these services. News organizations can theoretically opt-out of inclusion in digital platforms that aggregate news. Opting out means they’ll lose any potential exposure and traffic to rival news organizations that paraphrase or source from their original reporting. Readers also wants to read news in their preferred apps and platforms. News organizations has grudgingly opted for the broadest possible distribution to satisfy their readers.

The scope of the NMDPMBC is way too broad. Its definition covers services like the ones mentioned above. However, it’s so broadly focused it even covers links that are part of a 2000-word essay posted on users’ WordPress.com- or Google Blogger-hosted blogs. Those are links to news organizations posted on a digital platform service, after all. A link to a news story on a search result page shown in response to someone’s search query also can’t be compared with a news portal like Google News.

A commonly suggested “fix” for the broad scope of the NMDPMBC is to compensate news organizations for clicks rather than links. Online news is a buffet with a wide selection of topics and priorities. There’s value in just skimming the news headlines. It’s a common method to stay abreast of today’s breaking news. Therefore, you can’t compensate news organizations for clicks alone. Focusing on clicks would incentivize click-baiting, knowledge-gap headlines, and other practices to optimize the click-through rate.

I’d go so far as to say that the scope of the NMDPMBC is dangerously broad and far-reaching. In my opinion, the NMDPMBC should be repealed and replaced by a new legislation with a much narrower scope. I propose that news organizations should be compensated for their works when it’s packaged and used in a competing news destination service. A news destination is any service that features news from one or more news sources; with the news forming a significant portion of the services’ value-proposition. E.g. links to news organizations in response to contextual search results or links shared between users as part of a discussion doesn’t make a service into a news destination.

This definition excludes e.g. a link at the top of a blog post or forum thread, even with a preview, as long as that is not the primary focus of the page. It also excludes social media streams where discussions and opinions about the news are the primary content. In contrast, a platform like Twitter puts a heavy emphasis on the shared news link, with large headlines and huge imagery. Twitter also limits the length of the poster’s comment to a degree that ensures the shared link remains the main focus.

The new scope of this revised legislation has some unintended consequences, however. I’m a fan of the open web syndication standard, and would exclude some types of services built around the principles of this technology. Any good legislation needs a few exceptions. Here are three exceptions I’d include in a revised legislation:

Firstly, a news destination with “fewer than 10 000 daily visitors (monthly average)” is exempt. This is a fairly low number. However, I don’t believe it’s a right to create a direct competitor using someone else’s works without paying for the privilege.

Secondly, news shared directly from a news organization’s own app or website should be exempt. E.g. you can’t require Facebook to pay for news being shared when you’ve included a prominent Share button on your website. That’s an implicit license to freely share the content. That doesn’t mean that other methods of sharing links to that same article is exempt, however. Social media platforms already track how links are shared. News organizations can’t have it both ways.

Thirdly, a news destination that only aggregates news from syndication feeds (“RSS”) provided by the end-user to the service is exempt. The user does the curation work themselves choosing who to follow in a format created specifically for syndication. Under this exemption, a digital platform service can’t suggest or recommend news organizations to follow, or provide a set of defaults.

The premise of requiring digital platforms to pay for any type of link to a news website in any context is fundamentally flawed. Not all links are created equal! The changes I propose above probably aren’t perfect, and I’m sure you can poke holes in them. I do believe, however, that it’s a huge improvement over the general link tax that made it into law in Australia.