Facebook to lift news ban, but won’t be subject to ‘forced negotiation’

By Shannon Jenkins

February 23, 2021

(AAP Image/Lukas Coch)

Australians will soon be able to share news content on Facebook once again following amendments to the government’s news media bargaining code.

Treasurer Josh Frydenberg and communications minister Paul Fletcher on Tuesday said the amendments would provide “clarity” to digital platforms and news organisations and “add further impetus for parties to engage in commercial negotiations outside the code”.

In a statement, Facebook’s vice president for global news partnerships Campbell Brown said that while the social media giant would restore news in Australia in the coming days, Facebook would “retain the ability to decide if news appears on Facebook so that we won’t automatically be subject to a forced negotiation”.

The government’s decision to amend the code — which would have forced Facebook to pay Australian publishers for news content on the platform — has come less than a week after Facebook wiped all news content in Australia, as well as a number of government pages on the platform.

The amendments, according to Frydenberg and Fletcher, would make it clear that:

  • A decision to designate a platform under the code must take into account whether a digital platform has made a significant contribution to the sustainability of the Australian news industry through reaching commercial agreements with news media businesses,
  • A digital platform would be notified of the government’s intention to designate prior to any final decision — noting that a final decision on whether or not to designate a digital platform would be made no sooner than one month from the date of notification,
  • Non-differentiation provisions would not be triggered because commercial agreements resulted in different remuneration amounts or commercial outcomes that arose in the course of usual business practices,
  • Final offer arbitration would be a last resort where commercial deals cannot be reached by requiring mediation, in good faith, to occur prior to arbitration for no longer than two months.

Read more: The Briefing: short-term agency bans aside, the Facebook war can only make it harder for public servants to fight misinformation

The Media, Entertainment and Arts Alliance has welcomed Facebook’s decision to lift the ban, but it has raised concerns that the amendments could further entrench the narrow ownership base of the Australian media market.

“We now face the strange possibility that the News Media Mandatory Code could be passed by Parliament and it applies to precisely no one. It will just sit in the Treasurer’s drawer as a threat to misbehaving digital companies, which could later counter threat to turn the tap back off,” MEAA president Marcus Strom said.

“It shouldn’t be up to Facebook and Google to cherry pick and groom publishers it deems acceptable for side deals. Any code should be mandatory, uniform, predictable, and fair; not at the whim of technology executives.”

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