2020 Media law reforms in Australia

Just over one year after the Australian Competition and Consumer Commission (ACCC) released its Digital Platform Inquiry – final report[1] (DPI), Australia’s media regulatory landscape is finally set for a shake up, with reforms to address largely unregulated online media platforms anticipated for late 2020. 

Draft mandatory code of conduct due July 2020 – news media and online platforms

After public consultation and despite pushback from Facebook and Google, the ACCC is due to release a draft mandatory code of conduct (Code) by the end of July 2020 to govern commercial relationships between large digital platforms and news media companies.  This is just weeks after Google announced it would launch a licensing program to pay publishers for high-quality content for a ‘new news experience’. 

The Australian Government directed the ACCC in April to draft the mandatory Code after tech giants, Google and Facebook, failed to negotiate voluntary codes of conduct with media outlets, as requested under the Government’s formal Response[2] to the DPI.

The mandatory code is anticipated to address concerns around:

• data sharing;
• ranking and display of news content; and
• monetisation and the sharing of revenue generated from news.

The Code is also set to establish appropriate enforcement, penalty and binding dispute resolution mechanisms. 

Whether large digital platforms will bow to the pressures of the Australian Government once a Code is introduced is yet to be seen, however Google’s proposed licensing program is a step towards suggesting a compromise. 

Public consultation has ended for proposed ‘platform neutral’ reform options to the film, television and broadcasting industry

Earlier this year and in response to the DPI, the Australian Government, in conjunction with Screen Australia and the Australian Communications and Media Authority (ACMA), released its Options Paper on how to best support Australian stories in a modern, multi-platform media landscape.  With submissions now closed, Australia is one step closer to ‘platform-neutral’ media regulation as the government deliberates on how best to move forward. 

The Options Paper proposed effectively four potential reform models:

• maintain the status quo – no changes;
• fine tune the existing regulatory framework and incentives;
• significantly overhaul the regulatory framework to create platform-neutral regulation for both traditional broadcasters and online platforms; or
• completely deregulate the media industry so that no media platform is subject to regulation.

The models discussed options for:

• minimum expenditure and distribution quotas for local content across each platform;
• reworking the Producer, Location and Post, Digital and Visual Effects (PDV) Offset percentages, as well as the future of the Location Incentive; and
• discoverability requirements for Australian content on subscription video on demand (SVOD) services.

The Options Paper received over 300 responses from various stakeholders, with broad support ranging from complete deregulation and scrapping of sub-quotas, to modified versions of deregulation to support for equal regulation standards across all media platforms.  Netflix also proposed a flexible, reasonably set voluntary investment model that would meet ‘cultural policy goals and incentivises wider investment’ instead of imposing a quota system on SVOD services.

The ACCC and Australian Government are yet to comment on next steps after submissions closed on 3 July 2020.

Despite wide-ranging debate over the best way forward for media regulation reform in Australia, most stakeholders are urging the Australian Government to stick to its planned time frame to initiate reform in 2020.  We anticipate a government response in the coming months, and consider a draft reform plan may look like a combination of model 3 and model 4.  The media regulatory landscape may look very different heading into 2021.

Special thanks to Lornagh Lomax, Lawyer for her assistance in putting this article together. 

[1] Digital Platforms Inquiry – final report (2019), Australian Competition and Consumer Commission, published 26 July 2019. 

[2] Government Response and Implementation Roadmap for the Digital Platforms Inquiry (2019), Australian Government, published 12 December 2019.

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