The News Media Bargaining Code - CBAA Fact Sheet 1 - March 2021
Introduction
The News Media Bargaining Code[i] is a new framework designed to encourage digital platforms to voluntarily negotiate a fair price to pay to publish the news of an Australian news business and/or corporation.
Digital platforms, and news businesses and corporations, will first have to meet certain requirements to register as eligible parties under the Code.
The News Media Bargaining Code rules are enforceable by the Australian Communications and Media Authority (ACMA) – the regulator of community radio stations.
The News Media Bargaining Code has been passed by both Houses of Parliament, but has not yet commenced (at the time of writing). Once it does commence, you can see it via this link.
ACMA Guidelines
The ACMA have released information including a set of Guidelines, for those seeking to apply for registration as a news business/corporation under the News Media Bargaining Code. You can find their resources via this link.
Background - why was it introduced?
The News Media Bargaining Code seeks to address a power imbalance in commercial bargaining between digital platforms and Australian news businesses and corporations – that is the reason the News Media Bargaining Code will be inserted into the Schedule to the Competition and Consumer Act 2010 (Cth), once the law commences.
The power imbalance between digital platforms and Australian news businesses and corporations was identified in a 2019 report released by the Australian Competition and Consumer Commission (ACCC); ‘Digital platforms inquiry - final report’. You can read the ACCC’s media release on that report, here.
The News Media Bargaining Code is one of a number of recommendations made by the ACCC to address this power imbalance and support public interest journalism.
It’s important to note two key things about the News Media Bargaining Code:
- all news businesses/corporations can still negotiate with digital platforms to sell their news content, outside the Code if they wish,[ii] and
- if a news business/corporation does want to use the News Media Bargaining Code when negotiating to sell news content to a digital platform, strict rules apply.
The CBAA will soon publish more information about these rules.[iii]
Frequently Asked Questions (FAQs):
Will my community radio station be affected by the News Media Bargaining Code when it commences?
The short answer for most individual community radio stations is no – unless your community radio station creates its own news and wants to use the Code as the framework for your negotiations with a digital platform, regarding remuneration for your news material.
Who can negotiate fair payment for news content under the News Media Bargaining Code?
In order to use the Code as a framework for fair payment negotiations, news businesses and corporations must first be registered with the ACMA as a news business or corporation.
How can my radio station register as a news business or corporation under the News Media Bargaining Code rules?
To gain registration, an application must be made in writing to ACMA in accordance with the rules.[iv]
ACMA cannot approve your registration as a news business/corporation unless your station provides ACMA with documentation that meets the criteria under five separate tests. They are, the ‘content test,’[v] the ‘Australian audience test,’[vi] the ‘professional standards test,’[vii] the ‘revenue test,’[viii] and connection between applicant corporation and news business.[ix]
We will briefly examine 2 of these 5 tests – the content test, and the revenue test.
The content test[x]
Broadly, the content test will be met where the primary purpose of your radio station is to create content that is core news content. (Refer to the provision itself for all relevant conditions).
Core news content is defined as,
content that reports, investigates or explains:
(a) issues or events that are relevant in engaging Australians in public debate and in informing democratic decision-making; or
(b) current issues or events of public significance for Australians at a local, regional or national level.[xi]
The task of working out whether your station meets this core news content requirement under the content test, involves:
- considering the amount of core news your station creates,
- how frequently your station creates core news content,
- the proportion of core news content your station creates when compared to other kinds of content your station creates, and
- any other relevant information.
The revenue test[xii]
Broadly, the revenue test will be met where your news media business/corporation can demonstrate revenue of a least $150,000 per year - in either your most recent year of accounts, or for at least 3 out of the last 5 years.
(Refer to the provision itself for all relevant conditions).
Does the News Media Bargaining Code allow for registration of a radio show as a news source where it includes content from another provider?
Yes - in fact, the ACMA Guidelines implicitly provides for ‘commissioned’ and ‘syndicated’ content (on page 14):
A news source must create core news content. A news source can be considered to create content even if it obtains the content from external parties or shares content between related news sources. This includes commissioned content, syndicated content and content developed by freelancers.
Of course, this fact should be disclosed in any application for registration submitted to ACMA – as well as the details of the arrangements.
It may be a good idea to attach evidence to an application, which set out the extent to which commissioned or syndicated material features in a radio show – i.e., a sample or projected schedule depicting the level of commissioned content versus original content created by a station.
To be extra sure, sourcing a copy of the professional standards and the editorial policy that applies to the content creator of that commissioned or syndicated material might also be attached.
Could a finance-related current affairs show be registered as a news source under the News Media Bargaining Code?
This is not a simple yes or no answer – but we believe it may be possible that a current affairs show with a focus on consumer finance and the economy, may be assessed by ACMA as a news source, where all other conditions are met.
It would first depend on ACMA being satisfied that the content is of ‘public significance’ at a local, regional or national level; including reporting on finance/finance policy-related events that are of particular importance or significance to the community.
It is also important to note that each episode of a current affairs show would have to be all core news content, where no episodes of the show are weaker in the amount of core news content it contains i.e., an episode that begins with some core news content, but then turns into an informal chat for the rest of the show, would probably not meet the requirement.
If ACMA agrees that such a show is indeed core news content, it may then be assessed by ACMA news source for the purpose of the content test, in the News Media Bargaining Code.
The ACMA Guidelines, on page 8, also suggest supporting documentation may be attached to help establish eligibility under the content test if necessary – thus it may be prudent to annexe the details of such a show’s structure; and any documents that guide the show’s content and editorial direction.
Next, we will explain some of the rules in the News Media Bargaining Code that we reviewed to answer this question.
The ‘definitions’ clause (Subclause 4) of the News Media Bargaining Code, provides:
core news content means content that reports, investigates or explains:
- issues or events that are relevant in engaging Australians in public debate and in informing democratic decision-making; or
(b) current issues or events of public significance for Australians at a local, regional or national level.
And:
news source means any of the following, if it produces, and publishes online, news content:
(a) a newspaper masthead;
(b) a magazine;
(c) a television program or channel;
(d) a radio program or channel;
(e) a website or part of a website;
(f) a program of audio or video content designed to be distributed over the internet.
These above definitions apply when considering whether your station meets the ‘content test’ which is set out in Clause 52N. It provides:
(1) … is met in relation to a news business if the primary purpose of each news source covered by subsection (2) is to create content that is core news content.
But we note subsection (3) of Clause 52N, which provides:
(3) For the purposes of subsection (1), in determining whether the primary purpose of a news source is to create content that is core news content, take into account the following matters:
- the amount of core news content created by the news source;
- the frequency with which the news source creates core news content;
- the degree of prominence given to core news content created by the news source, compared with the degree of prominence given to other content created by the news source;
- any other relevant matter.
We also note that the ACMA Guidelines provide that core news content is not necessarily limited to public policy and government-making – and at the minimum, extends to,
… other matters of public significance, such as reporting on law and order, health, education, science, industrial relations and business.
It also includes coverage of current issues or events where these are of public significance at a local, regional or national level. This includes reporting on community issues or events that are of particular importance or significance to the community. Matters that are principally private or of special interest are not considered to be core news. Opinion or editorial content will qualify as core news only where it reports, investigates or explains issues that are relevant in engaging Australians in public debate and in informing democratic decision-making; or where it reports, investigates or explains current issues or events of public significance at a local, regional or national level.
If you need help
The information provided here is intended to be a simple, plain-language discussion of some key points to help promote understanding of the News Media Bargaining Code. It does not contain all relevant conditions and is not specific to any particular station.
If you have any questions about the News Media Bargaining Code, please phone the CBAA on 02 9310 2999; or email us at [email protected].
You may also want to seek independent legal advice and/or contact ACMA directly - ACMA can be contacted at [email protected] or on 1300 850 115.
End notes:
[i] Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 (Commonwealth).
[ii] P. Dearman & P. Pyburne (15 February, 2021), ‘Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020,’ Bills Digest Bills Digest No. 48, 2020–21. Retrieved from https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2021a/21bd048 Accessed 25/02/2021.
[iii] As set out in Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 (Commonwealth), Schedule 1, Part 1, Division 3.
[iv] Ibid.
[v] Ibid; Cl. 52N(1).
[vi] Ibid; Cl. 52O(1).
[vii] Ibid; Cl. 52P(1).
[viii] Ibid; Cl. 52M(1).
[ix] Ibid; Cl. 52L.
[x] Above n. v.
[xi] Ibid; Cl. 52A.
[xii] Above n. viii.