Abstract
In February 2021 two initiatives for regulating digital platforms in Australia were implemented. The News Media Bargaining Code (“News Code”) attracted international attention as a legislative means of forcing platforms to pay for news content, while the Australian Voluntary Disinformation and Misinformation Code (“Disinformation Code”) was modelled on an international initiative. Both were developed to meet Government policy formulated in response to Australia’s Digital Platforms Inquiry. Whereas the Inquiry recommended the use of co-regulation, Government policy switched to voluntary codes for both, then to a legislative scheme for the News Code. This article examines the schemes and critiques the policy on which they are based. It applies a conceptual framework to assess the optimum conditions for the use of co-regulation and self-regulation. It finds that a self-regulatory scheme of voluntary codes was never a suitable approach for the News Code, and that the close involvement of the regulator on the Disinformation Code — without a suitable remit or enforcement powers — distorts the self-regulatory model. This can in part be explained by the failure to address well-recognised flaws in the co-regulatory framework for telecommunications and broadcasting, the consequences of which are now being seen in attempts to regulate digital platforms.
Introduction
For a short time in early 2021, global attention turned to Australia as our Parliament grappled with the challenge of regulating digital platforms. The heightened level of international interest was prompted mostly by the public drama surrounding Facebook’s sudden decision to remove news (and, temporarily, a number of non-news information services) from its newsfeed. In an international context, as Lindsay (in print) has shown, Australia’s initiative attracted attention for its use of competition law, rather than copyright law, to force platforms to pay publishers for news. While flawed, the scheme appears to have succeeded at least to some extent and for at least some publishers, with deals worth up to $250 million annually for news media businesses (Pash, 2021).
Despite its high profile, the News Media Bargaining Code (now Part IVBA, News Media and Digital Platforms Mandatory Bargaining Code, of the Competition and Consumer Act 2010 (Cth)) (referred to below as “the News Code”) is not the only attempt at regulation of digital platforms in Australia; instead, it can be seen as one of several initiatives aimed at bringing digital platforms within the regulatory framework. This article contrasts the approach taken in the News Code and in the new Australian Code of Practice on Disinformation and Misinformation (“the Disinformation Code”), both of which were developed in response to Government policy that aimed to
deliver a regulatory framework that is fit for purpose and better protects and informs Australian consumers, addresses bargaining power imbalances between digital platforms and media companies, and ensures privacy settings remains [sic] appropriate in the digital age (Australian Government, 2019, p. 3).
The extent to which the regulatory framework can be described as “fit for purpose” is questionable. In particular, there is a level of uncertainty around the use of co-regulation in the communications sector, with previous policy reviews having shown some fundamental problems in the way it has been applied. As this article shows, the uncertainty surrounding co-regulation might in turn explain the inconsistency in how self-regulation has been applied to digital platforms.
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