Background and timeline

Following the findings in the ACCC’s Digital Platforms Inquiry, in December 2019 the Government directed the ACCC to facilitate development of a voluntary code of conduct redesigned to address market power imbalances between digital platforms and news media.

In April 2020 the Government decided there was a need for acceleration of the process and directed the ACCC to develop a mandatory code of conduct.

The ACCC released a concepts paper on 19 May 2020 seeking views on the development of a draft.

A draft mandatory code was released on 31 July 2020 for public consultation.

Consultation took place until 28 August 2020.

The government tabled a bill on 9 December 2020: The Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020.

The Senate Standing Committee on Economics (Legislation Committee) recommended passage of the Bill in February 2021.

Bill passed both houses: 25 February 2021

Assent: 2 March 2021

Released 31 July 2020

The ACCC released a draft code on 31 July 2020.

ACCC media release

Draft news media bargaining code (includes Q&A document)
Note this page does not include the actual code.

Draft legislation
This includes the exposure draft bill

Exposure draft bill and EM

Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020

The exposure draft bill runs to 33 pages. It proposes adding a new Part IVBA to the Competition and Consumer Act 2010.

Following are extracts or summaries of proposed inclusions. Anything in square brackets is either my text or, if it commences with ‘⚑ EM’ and is in italics it is an extract from the Explanatory Materials to the Draft Bill]

[⚑ EM: 1.1 This Bill establishes a mandatory code of conduct to address bargaining power imbalances between digital platforms and Australian news businesses.

Context of amendments

1.2 The ACCC’s Digital Platforms Inquiry Final Report identified a fundamental bargaining power imbalance between Australian news businesses and each of Google and Facebook. This imbalance is undermining the ability and incentives for Australian news businesses to produce news content.

1.3 Google and Facebook derive a benefit from the ability to make Australian news content available to their users. The size of their online Australian audience makes them unavoidable trading partners for Australian news businesses. Google and Facebook each appear to be more important to Australian news businesses than any one Australian news business is to each of Google and Facebook. This has resulted in Australian news businesses accepting commercial deals with these platforms that are less favourable than they would otherwise agree to.

1.4 The Digital Platforms Inquiry Final Report identified a number of concerns stemming from the inability of Australian news businesses to negotiate more favourable terms with these digital platforms, including the inability of Australian news businesses to successfully bargain to receive payment for the inclusion of their news content on flagship Google and Facebook services.

1.5 While bargaining power imbalances exist in many other contexts, intervention is necessary to address the bargaining power imbalance because of the public benefit provided by the production and dissemination of news and the importance of a strong independent media in a well-functioning democracy.

1.6 Due to these issues, the Digital Platforms Inquiry Final Report recommended that a code of conduct should be developed to regulate commercial relationships between each of Facebook and Google and Australian news businesses.

…

1.9 The Bill provides that the Treasurer may make an instrument designating that a digital platform is required to comply with the news media and digital platform mandatory bargaining code. In the first instance, the Government has announced that the mandatory code of conduct will apply to Facebook and Google. However, the Treasurer may also make subsequent instruments in the future designating other platforms where fundamental bargaining power imbalances with Australian news businesses emerge.

Summary of new law

1.10 The Bill establishes a mandatory code of conduct to address bargaining power imbalances between digital platform services and Australian news businesses.

1.11 It does this by setting out four main sets of requirements to guide dealings between the responsible digital platform corporation for a digital platform service and registered news business corporations (explained further below).

1.12 The four main sets of requirements are:

• bargaining rules – which require the responsible digital platform corporations and registered news business corporations that have indicated an intention to bargain, to do so in good faith;

• compulsory arbitration rules – where parties cannot come to a negotiated agreement about remuneration relating to the inclusion of covered news content on designated digital platform services, an arbitral panel will select between two ‘final offers’ made by the parties;

• minimum standards – which require responsible digital platform corporations to provide registered news businesses corporations with advance notification of algorithm changes, information about the collection and availability of user data and advance notification of changes affecting the display and presentation of news content; and

• non-discrimination requirements – which require responsible digital platform corporations to prevent a digital platform service from disadvantaging the news content of an Australian news business.

1.13 The ABC and SBS are able to register with ACMA and participate in the code in all respects and benefit from the minimum standards, however, they will not be able to bargain about remuneration or participate in compulsory arbitration about remuneration.

1.14 This permits the ABC and SBS to benefit from the minimum standards imposed on digital platforms under the code, but excludes them from accessing the bargaining provisions in relation to remuneration under the code. This is appropriate because advertising revenue is not the principal source of funding for public broadcasters.

1.15 A responsible digital platform corporation for a digital platform service is required to participate in the code if the Treasurer has made a determination specifying a corporation that operates or controls the digital platform service.

1.16  The responsible digital platform corporation is either:

• an Australian subsidiary (of the corporation identified in the Treasurer’s designation); or

• if that subsidiary does not operate or control the digital platform service – the designated digital platform corporation itself.

1.17  For a news business corporation to participate, it must be registered by the ACMA. The ACMA must register a news business (and the applicant as the news business corporation) if the applicant had an annual revenue above $150,000 in the most recent year or in three of the five most recent years, and the news sources comprising the news business:

• relate predominantly to ‘core news content’ (definition discussed below)

• are subject to appropriate professional journalistic standards set out by an Australian professional body for media or an equivalent set of standards; and

operate predominantly in Australia for the dominant purpose of serving Australian audiences.

1.18 As part of the consultation on this exposure draft, views are sought on the appropriateness of the $150,000 threshold.

1.19 Once a news business corporation is registered by the ACMA, each responsible digital platform corporation must comply with the minimum standards. Further, commercial negotiations between news business corporations and responsible digital platform corporations must not result in agreements that would require breaching these minimum standards.

1.20 Once a news business corporation is registered by the ACMA, it may indicate an intention to bargain in relation to its covered news content (definition discussed below) with a responsible digital platform corporation.

1.21 A registered news business corporation is also able to form a group with one or more other registered news business corporations for the purpose of collectively bargaining with a responsible digital platform corporation under the code. The Bill specifically authorises this collective bargaining so that it does not contravene the CCA’s restrictive trade practices provisions.

1.22 If a registered news business corporation has indicated an intention to bargain, a responsible digital platform corporation and a registered news business corporation must negotiate in good faith. Breaches of this requirement are subject to a civil penalty.

1.23 If an agreement is not reached between the parties within three months of the registered news business corporation indicating an intention to bargain, the matter will be subject to compulsory arbitration.

1.24 If a responsible digital platform corporation and a registered news business corporation are subject to compulsory arbitration, an arbitral panel chosen by the bargaining parties (or by the ACMA if the parties fail to agree on panel members) will select between two final offers made by the parties.

1.25 Both parties must submit a final offer to the arbitral panel stating a remuneration amount. The remuneration amount must be in relation to the benefit derived by the responsible digital platform corporation from the inclusion of covered news content on its digital platform services. The final offers must be submitted within 10 business days of compulsory arbitration being triggered.

1.26 The arbitral panel must accept one of those offers, unless it considers that each final offer is not in the public interest, in which case the arbitral panel may amend the more reasonable of the two offers. This is expected to happen in very limited circumstances – for example where both offers put forward by parties would be highly likely to result in serious detriment to the provision of covered news content in Australia, or to Australian consumers.]

Division 1 Basic concepts

[Division 1 begins with a definition section]

52A Definitions

[Key among the definitions in this section:]

core news content means content that: 

(a) is created by a journalist; and 

(b) that records, investigates or explains issues that: 

(i) are of public significance for Australians; or 

(ii) are relevant in engaging Australians in public debate and in informing democratic  decision-making; or 

(iii) relate to community and local events.

covered news content means content that is any of the following: 

(a) core news content; 

(b) content that is created by a journalist and is relevant in recording, investigating or explaining  issues of interest to Australians.

[EM: 1.65 ‘Covered news content’ is a broader category than ‘core news content’ and includes:

• core news content (this definition is discussed above); and

• any other content that is created by a journalist which is relevant to recording, investigating or explaining issues of interest to Australians.

  …

1.66 ‘Covered news content’ is intended to capture content including sports and entertainment related news such as interviews with coaches and players, reporting about the entertainment industry and coverage of reality television, but is intended to exclude:

• broadcasts of sports games or publication of sports results or scores; and

• entertainment content such as drama or reality TV programming.

1.67 ‘Covered news content’ is also intended to exclude specialty or industry reporting, product reviews, talk-back radio discussions, content produced by academics and documentaries. ]

designated digital platform corporation means a corporation that is specified as a designated digital platform corporation in a determination under section s 52C [the Treasurer is responsible for designation, and while s/he must consider certain criteria, their designation is not invalid for failing to consider that criteria: s 52(C)(3)]

designated digital platform service means a service that is specified as a designated digital platform service in a determination under section s 52C [as above re: Treasurer responsibility for designation]

news business means

(a) a news source; or

(b) a combination of news sources.

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;

(d) a radio program;

(e) a website;

(f) a program of audio or video content designed to be distributed over the internet.

registered news business means a news business that is registered by the ACMA under subsection 52E [ACMA is the Australian Communications and Media Authority]

responsible digital platform corporation for a digital platform service is:

(a) a corporation that:

(i) is a related body corporate of the service’s designated digital platform corporation; and

(ii) if the corporation is not incorporated in Australia—is managed in Australia; and

(iii) either by itself or together with other corporations, operates or controls the digital platform service in supplying services that are used by Australians; or

(b) if there is no corporation that satisfies the requirements of paragraph (a) - the service’s designated digital platform corporation.

52B Meaning of digital platform service

A service is a digital platform service of a designated digital platform corporation if:

(a) the designated digital platform corporation, either by itself or together with one or more related bodies corporate of the corporation, operates or controls the service; or

(b) a related body corporate of the designated digital platform corporation, either by itself or together with one or more other related bodies corporate of the corporation, operates or controls the service.

Division 2 - Designated digital platform corporation and designated digital platform service

52C Treasurer may make designation determination

[Treasurer can make designations that a corporation is a designated digital platform corporation and specifies one or more digital platform services operated or controlled by a designated digital platform corporation as designated digital platform services of the corporation. Although the Treasurer, in making the determination, must consider whether there is ‘a significant bargaining imbalance between Australian news providers and the group comprised of the corporation and all of its related bodies corporate’ the determination is not invalid for failure to consider this (s 52C(3)). The Treasurer may also consider reports or advice of the Commission.

In his press release announcing the draft bill and in the explanatory materials extracted below the Treasurer noted that initially Facebook and Google would be designated in this way: “I as Treasurer, will be able to determine that a digital platform is subject to the code. And it will start with Google and Facebook. And I'll have regard to ACCC advice about whether a substantial power, bargaining power imbalance exists in the listing of other digital platforms“ and EM ‘In the first instance, the Government has announced that the mandatory code of conduct will apply to Facebook and Google’. Further:

⚑ EM: 1.34 The Treasurer’s instrument is expected to specify the following as designated digital platform services:

• Facebook News Feed (including Facebook Groups and Facebook Pages);

• Facebook News Tab (if and when released in Australia);

• Instagram;

• Google Discover;

• Google News; and

• Google Search]

Division 3 - Registered news business

52D Application for registration of news business and news business corporation

[Provides that a corporation can apply to ACMA to register news business and to be registered as the ‘registered news business corporation for the news business’ - provides details of how to do this]

52E Registration of news business and news business corporation

[Provides details about when ACMA must register the news business, including meeting requirements in s 52F (connection between applicant corporation and news business) and meeting revenue test (A$150k), content test (predominantly core news content), Australian audience test (operate predominantly in Aus and for dominant purpose of serving Aus audiences) and professional standards test (subject to specified rule re: editorial standards for quality journalism and has editorial independence form subjects of its news coverage). Registration may be revoked if business no longer meets the requirements]

[⚑ EM: 1.43 It is intended that the ACMA will have the necessary powers to administer the functions conferred on it in the code. This will include information gathering powers to obtain information relevant to determining whether a news media business satisfies these tests. Provisions to this effect will be included in the final code.

1.44 In a registration application to the ACMA, a news business corporation must nominate every one of its individual news sources that it wishes to comprise the registered news business for the purpose of the code. The ACMA must publish the details of the registration on its website. …

1.45 A news source cannot be included twice. That is, the news sources set out in the news business corporation’s application cannot form part of another news business already registered.

1.46 A news business corporation is not required to nominate all of its news businesses or news sources. It may select which of these it wishes to nominate, in any combination it chooses. ...

1.47 However, all negotiation, mediation and arbitration facilitated by the code will apply only to covered news content of those news sources and will not apply to other content produced or published by the news business corporation. The code’s minimum standards will also only apply to covered news content of those news sources (discussed further below)].

52F Requirements for connection between applicant corporation and news business

For the purposes of paragraph 52E(1)(c), the requirement is that the applicant corporation, either by itself or together with other corporations, operates or controls the news business.

52G Revenue test

For the purposes of paragraph 52E(1)(d), the requirement is that the applicant corporation’s annual revenue, as set out in its annual accounts prepared in accordance with generally accepted accounting principles, exceeds {$150,000}:

(a) for the most recent year for which there are such accounts; or

(b) for at least 3 of the 5 most recent years for which there are such accounts.

52H Content test

(1) For the purposes of subparagraph 52E(1)(e)(i), the requirement is that each news source covered by subsection (2) creates, and publishes online, content that is predominantly core news content.

[Core content defined in 52A as content created by a journalist that ‘records, investigates or explains issues’ of public significance for Australians or relevant in ‘engaging Australians in public debate and in informing democratic decision-making or that relate to community and local events’.

EM: 1.51 Core news content can relate directly to matters of public policy and government decision making at any level of government. However, it can also include other matters of public importance such as the activities of private sector entities.

1.52 Political, court and crime reporting are examples of content intended to be captured by this test.

1.53 Core news content can include editorial and opinion pieces, if those pieces are written by journalists.]

…

52J Australian audience test

(1) For the purposes of subparagraph 52E(1)(e)(ii), the requirement is that all the news sources covered by subsection (2) (considered as a whole) operate predominantly in Australia for the dominant purpose of serving Australian audiences.

(2) This subsection covers a news source if it is set out in the application (in accordance with paragraph 52D(2)(b)).

[EM: A local business of a foreign news business may satisfy the Australian audience test if the local business operates predominantly in Australia for the dominant purpose of serving Australian audiences. However, a global news business that only occasionally produces Australian news content will not satisfy the test.]

52K Professional standards test

(1) For the purposes of subparagraph 52E(1)(e)(iii), the requirement is that:

(a) every news source covered by subsection (2):

(i) is subject to the rules of the Australian Press Council or the Independent Media Council; or

(ii) is subject to the rules of the Commercial Television Industry Code of Practice, the Commercial Radio Code of Practice or the Subscription Broadcast Television Codes of Practice; or

(iii) is subject to rules substantially equivalent to those mentioned in subparagraph (i) or (ii) regarding internal editorial standards that relate to the provision of quality journalism; and

(b) every news source covered by subsection (2) has editorial independence from the subjects of its news coverage.

(2) This subsection covers a news source if it is set out in the application (in accordance with paragraph 52D(2)(b)).

[⚑ EM: 1.58 A news source will have editorial independence from the subject of its news coverage if it is:

• not owned or controlled by a political advocacy organisation (such as a political party, lobby group or a union); and

• not owned or controlled by a party that has a commercial interest in the coverage being produced (for example, a publication that covers a sport that is owned or controlled by the sport’s governing body).

  …

  Example 2 – Registration of Australian news businesses

  Nelson’s News Network (NNN) is an Australian news business with several news sources that are all magazines. The popular magazines mostly review local restaurants, but occasionally the magazines feature , editorial pieces about local politics. NNN had revenue of $500,000 in its most recent year for which there are accounts. NNN applies to the ACMA, nominating all its news sources and a news business corporation. Nelson is a journalist, having worked for major publications before starting NNN. NNN is registered with the Australian Press Council. However the content of NNN’s nominated news sources are not predominantly core news content, and therefore theACMA will not register NNN to participate in the code.]

Division 4 - Minimum standards etc

Subdivision A - The minimum standards

52L Obligations in respect of digital platform services individually

[States that this and subdivision B create obligations in respect of every digital platform service, in respect of ‘each registered news business’, with responsibility falling on the responsible digital platform corporation for the relevant service. Where there is more than one responsible digital platform corporation for the service the obligations are placed on each of them separately. Essentially they relate to:

• clearly explaining information that is collected in relation to engagement of content by platform users and explaining how news businesses can access (some) of that data;

• giving notice of planned changes to algorithms that will have a significant effect on news rankings;

• giving notice if changes in algorithms are made specifically designed to effect content behind a paywall;

• giving notice of significant changes are planned which will have an effect on display and presentation of news business’ covered news content;

• giving notice of planned changes to algorithms likely to have significant effect on display and presentation of advertising directly associated with the registered news business’ content;

• facilitating communication (including having a clear point of contact for news businesses);

• allowing news business to request access to moderation tools allowing them to remove or filter comments on covered news content made using the digital platform service and ensuring comment tools can be disabled and blocked by the registered news business (subject to any regulatory requirements that may be established);

• develop a proposal to recognise original news]

[⚑ EM: 1.61 The responsible digital platform corporation must ensure the requirements set out in the minimum standards are met. This reflects the entity’s responsibility for compliance, even if another entity in the corporate group carries out the task because, for example, the other entity controls a relevant algorithm or possesses relevant data.

…

1.64 The minimum standards extend beyond the ‘core news content’ of the news source of the registered news business to ‘covered news content’ produced by the registered news business.

1.65 ‘Covered news content’ is a broader category than ‘core news content’ and includes:

• core news content (this definition is discussed above); and

• any other content that is created by a journalist which is relevant to recording, investigating or explaining issues of interest to Australians.

… [see 52A, above]

1.68 The minimum standards apply to the broader category of covered news content, as many news businesses use other news content to cross-subsidise the production of core news content. This means it is important that registered news businesses receive information relating to, and can bargain over, a broader range of content than just their core news content.

Example 3 – Core news content versus covered news content

Tom’s News Network(TNN)is a news business that produces several news websites. The websites focus on political news reporting reporting (considered‘ core’ news in the code), but also feature some sports reporting and entertainment news.

TNN applies to be registered by the ACMA to participate in the code, nominating all its news sources and a news business corporation. The ACMA finds that each source is predominantly ‘core news’ and TNN meets all the other criteria. The ACMA registers TNN.

The minimum standards that the responsible digital platform corporation must meet in the code apply in relation to all of the covered news content TNN produces, not just its political news and court reporting (core news), and may include its sports reporting and entertainment news. This will allow TNN to gain a full picture of the performance of its stories on the digital platform service and to bargain with the responsible digital platform corporation under the code in relation to this content.

1.69 Information provided to registered news businesses by the responsible digital platform corporation under all the minimum standards must be provided in terms that are readily comprehensible.

1.70 Where there is a requirement on the responsible digital platform corporation to provide information or notice to the registered news business corporation, records of the associated internal decision making process relating to that information or notice must be kept. These records should be kept within Australia and the ACCC’s information gathering powers will extend to these records.

1.71 None of the minimum standards require the giving of information the publication of which would reveal a trade secret.]

52M Giving explanations of information etc.

(1) The responsible digital platform corporation for the digital platform service must ensure that:

(a) information covered by subsection (2) is given to the registered news business corporation for the registered news business; and

(b) the information is given in terms that are readily comprehensible; and

(c) the information is given to the registered news business corporation no later than 28 days after the day on which the registered news business was registered under section 52E; and

(d) if regulations made for the purposes of this paragraph specify other requirements for that information—those requirements are satisfied.

(2) This subsection covers the following information:

(a) a list and explanation of the data that the digital platform service collects (whether or not it shares the data with the registered news business) about the registered news business’ users through their engagement with covered news content made available by the digital platform service;

(b) a list and explanation of the products and services supplied by the digital platform service that collect data about the registered news business’ users through their engagement with covered news content made available by the digital platform service;

(c) a list and explanation of the data that the digital platform service currently has a practice of making available to registered news businesses;

(d) an explanation of how the form of the data mentioned in paragraph (c) differs from the form of the data collected by the digital platform service about users of the digital platform service;

(e) information about how the registered news business corporation can gain access to the data mentioned in paragraphs (a) and (c).

(3) The responsible digital platform corporation for the digital platform service must ensure that:

(a) updated information covered by subsection (2) is given annually to the registered news business corporation for the registered news business; and

(b) the updated information is given in terms that are readily comprehensible; and

(c) the updated information is given to the registered news business corporation no later than 12 months after the later of the following days:

(i) the day on which information was given to the registered news business corporation in accordance with subsection (1); or

(ii) the most recent day on which updated information was previously given to the registered news business corporation in accordance with this subsection; and

(d) if regulations made for the purposes of this paragraph specify other requirements for the updated information—those requirements are satisfied.

[⚑ EM: 1.75 The Governor-General can make regulations specifying other requirements which the responsible digital platform corporation must comply with. This regulation making power is required to keep the regulatory regime flexible and in line with changing industry practices. The regulations will be subject to disallowance by the Parliament and therefore will be subject to Parliamentary scrutiny.

1.76 The obligations imposed by this minimum standard are not intended to require digital platforms to disclose trade secrets or other intellectual property to news businesses, or to share any particular user data. Any disclosure of data must comply with the Privacy Act 1988. ]

52N Algorithmic ranking of covered news content

(1) Subsection(2)applies if:

(a) changes are planned to be made to an algorithm of the digital platform service; and

(b) the changes are likely to have a significant effect on the ranking of the registered news business’ covered news content made available by the digital platform service.

(2) The responsible digital platform corporation for the digital platform service must ensure that:

(a) notice of the change is given to the registered news business corporation for the registered news business; and

(b) the notice is given:

(i) unless subparagraph (ii) applies—at least 28 days before the change is made; or

(ii) if the change relates to a matter of urgent public interest —no later than 48 hours after the change is made; and

(c) the notice describes the change, and the effect mentioned in paragraph (1)(b), in terms that are readily comprehensible; and

(d) the notice describes how the registered news business can minimise negative effects of the change on the ranking of its covered news content made available by the digital platform service.

[⚑ EM: 1.79 Changes are likely to significantly affect the referrals to a registered news business corporation’s covered news content if they:

• are likely to result in a 15% or greater change in referral traffic for at least 25% of registered news businesses; or

• are otherwise likely to significantly affect the performance of a registered news business’ covered news content on a digital platform service.

1.80 If the algorithm change relates to a matter of urgent public interest, no advance notice is required, but the responsible digital platform corporation must ensure that the news business corporation is notified within 48 hours after the change. This exception recognises urgent algorithm changes such as those that might be required in relation to information about a public health crisis.]

52O Ranking and display of paywalled content

(1) Subsection (2)applies if:

(a) changes are planned to be made to an algorithm of the digital platform service; and

(b) the changes relate to the registered news business’ covered news content; and

(c) the changes are specifically designed to have an effect on the ranking or display of content behind a paywall.

(2) The responsible digital platform corporation for the digital platform service must ensure that:

(a) notice of the change is given to the registered news business corporation for the registered news business; and

(b) the notice is given at least 28 days before the change is made; and

(c) the notice describes the change, and the effect mentioned in paragraph (1)(c), in terms that are readily comprehensible.

[⚑ EM: 1.82 It is expected that the final code will require the notice to describe how the registered news business is able to minimise the negative effects of the change to the ranking of its covered news content.]

52P Display of covered news content

(1) Subsection(2)applies if:

(a) changes are planned to be made to internal policies and practices of the digital platform service; and

(b)  the changes are likely to have a significant effect on the display and presentation of the registered news business’ covered news content made available by the digital platform service.

(2) The responsible digital platform corporation for the digital platform service must ensure that:

(a) notice of the change is given to the registered news business corporation for the registered news business; and

(b) the notice is given:

(i) unless subparagraph (ii) applies - at least 28 days before the change is made; or

(ii) if the change relates to a matter of urgent public interest - no later than 48 hours after the change is made; and

(c) the notice describes the change, and the effect mentioned in paragraph (1)(b), in terms that are readily comprehensible.

[⚑ EM: 1.85 The final code will also include requirements about genuinely considering reasonable proposals from registered news business corporations to ensure that the display and presentation of news on platforms’ services provides appropriate prominence to their content (for example, displaying clear branding of mastheads).]

52Q Display of advertising

(1) Subsection (2) applies if:

(a) changes are planned to be made to an algorithm of the digital platform service; and

(b) the changes are likely to have a significant effect on the display and presentation of advertising directly associated with the registered news business’ covered news content made available by the digital platform service

(2) The responsible digital platform corporation for the digital platform service must ensure that:

(a) notice of the change is given to the registered news business corporation for the registered news business; and

(b) the notice is given:

(i) (unless subparagraph (ii) applies—at least 28 days before the change is made; or

(ii) if the change relates to a matter of urgent public interest—no later than 48 hours after the change is made; and

(c) the notice describes the change, and the effect mentioned in paragraph (1)(b), in terms that are readily comprehensible

52R Facilitating open communication—responsible digital platform corporation for digital platform service

The responsible digital platform corporation for the digital platform service must:

(a) set up a point of contact in Australia for the purpose of this section; and

(b) if regulations made for the purposes of this paragraph specify requirements for the point of contact—ensure that the point of contact meets those requirements; and

(c) give details of that point of contact to the registered news business corporation; and
acknowledge every communication to that point of contact

(d) from the registered news business corporation that relates to the registered news business’ covered news content made available by the digital platform service; and

(e) if regulations made for the purposes of this paragraph specify requirements for the acknowledgement—ensure that the acknowledgement meets those requirements.

52S User comments

(1) Subsection (2) applies if the registered news business corporation for the registered news business makes a request, in writing, to the responsible digital platform corporation for the digital platform service to do any of the following:

(a) ensure that the registered news business corporation is provided with flexible content moderation tools that allow the registered news business corporation to remove or filter comments on the registered news business’ covered news content that:

(i) are made using the digital platform service; and

(ii) are made on a part of the digital platform service that is set up and able to be edited by the registered news business;

(b) ensure that the registered news business corporation can disable the making of such comments;

(c) ensure that the registered news business corporation can block the making of such comments:

(i) by particular persons; or

(ii) in particular circumstances.

(2) The responsible digital platform corporation for the digital platform service must comply with the request.

(3) However, the responsible digital platform corporation for the digital platform service need not comply with the request if:

(a)  regulations made for the purposes of this paragraph specify requirements for such a request; and

(b)  the request does not meet those requirements.

[⚑ EM: 1.89 In the case of a social media service such as Facebook, this rule deals with the situation where the news business has posted its covered news content on the news business’ own social media page. Comments on the news business’ articles posted by somebody else on another Facebook page are not covered by this law.

1.90 The Governor-General can make regulations which contain additional requirements before a responsible digital platform corporation is required to comply with requests from a registered news business to provide them with the above tools. This regulation making power is required to keep the regulatory regime flexible and in line with changing industry practices. The regulations will be subject to disallowance by the Parliament and therefore will be subject to Parliamentary scrutiny.

Example 4 – Flexible moderation tools for content created by a registered news business corporation on a digital platform service

Archie’s Informative Chronicle (AIC) creates its own Facebook page to promote its breaking stories to a wider readership. AIC wishes to disable all comments on its stories posted to this page in order to most efficiently meet its compliance obligations with other laws and to reduce its operating costs. Facebook provides AIC with flexible content moderation tools so that it can do so.

AIC requests to the contact that the responsible digital platform corporation for Facebook has provided under this Part to be provided with the same flexible content moderation tools with respect to its stories when they appear in the news feed of any Facebook user.

Facebook refuses this request as this is not required under this Part.]

Subdivision B - Recognition of original news

52T Recognition of original covered news content

(1) The responsible digital platform corporation for the digital platform service must ensure that:

(a) a proposal is developed to recognise original covered news content when ranking and displaying news content on the digital platform service; and

(b) every registered news business corporation is consulted in developing that proposal; and

(c) the proposal is published no later than 6 months after the first registration of a news business under section 52E.

(2) The responsible digital platform corporation for the digital platform service must ensure that:

(a) an annual updated proposal is developed to recognise original covered news content when ranking and displaying news content on the digital platform service; and

(b) every registered news business corporation is consulted in developing that updated proposal before it is published; and the updated proposal is published no later than 12 months after the later of:

(i) the day on which a proposal was published in accordance with subsection (1); or

(ii) the most recent day on which an updated proposal was previously published in accordance with this subsection.

[⚑ EM: 1.91 A responsible digital platform corporation must consult with registered news business corporations and publish a proposal to appropriately recognise original covered news content published by the registered news business corporations within six months of the ACMA registering the first news business corporation. …

1.92 The responsible digital platform corporation then has an ongoing obligation to update its proposal every 12 months and consult all registered news businesses on the updated proposal. …]

[⚑ EM: 1.97 The final code will also include requirements about providing registered news business corporations the explicit option to ‘opt out’ of having their news content featured on any individual service operated by the digital platforms.]

Subdivision C - Obligations on registered news business corporations

52U Facilitating open communication—registered news business corporation for registered news business

A registered news business corporation for a registered news business must:

(a) set up a point of contact for the purpose of this section; and

(b) if regulations made for the purposes of this paragraph specify requirements for the point of contact—ensure that the point of contact meets those requirements; and

(c) give details of that point of contact to every responsible digital platform corporation for a digital platform service; and

(d) acknowledge every communication to that point of contact from a responsible digital platform corporation for a digital platform service that relates to the registered news business’ covered news content made available by that digital platform service; and

(e) if regulations made for the purposes of this paragraph specify requirements for the acknowledgement—ensure that the acknowledgement meets those requirements.

[⚑ EM: 1.94 Nothing prevents a responsible digital platform corporation identifying the same point of contact for multiple registered news business corporations, provided it can still fulfil the requirements for availability and responsiveness.

1.95 The Governor-General can make regulations which contain requirements for the registered point of contact and acknowledgement of the contact. This regulation making power is required to keep the regulatory regime flexible and in line with changing industry practices. The regulations will be subject to disallowance by the Parliament and therefore will be subject to Parliamentary scrutiny.

1.96 These regulations will include that the points of contact must be available during Australian business hours and that the acknowledgment must occur within two business days.]

Subdivision D - Trade secrets

52V Trade secrets

Nothing in this Division requires the giving of information the publication of which would reveal a trade secret.

Division 5—Non-discrimination

52W Digital platform service to be supplied on a non-discriminatory basis in relation to registered news businesses’ news content

The responsible digital platform corporation for a digital platform service must ensure that the supply of the digital platform service does not, in relation to crawling, indexing, ranking, displaying or presenting registered news businesses’ news content:

(a) discriminate between registered news businesses, in relation to the application of this Part; or

(b) discriminate between registered news businesses and news businesses that are not registered news businesses, in relation to the application of this Part.

[⚑ EM: 1.99 This means discrimination in relation to the registered news business proposing to or having relied on any rights or entitlements under the code is unlawful. Discrimination solely in relation to any agreement entered into under the code is similarly unlawful. …

1.100 Discrimination in this context will be considered to occur if the news content of a registered news business is disadvantaged in comparison to other news content in terms of the crawling, indexing, ranking, display, presentation or other process undertaken by the digital platform on any service provided by the digital platform, on the basis of the registered news business’ participation in the code.

1.101 For the avoidance of doubt, this requirement is not intended to interfere with the operation of the proprietary algorithms of a digital platform.

1.102 The non-discrimination requirements apply in relation to all news content instead of only core news content or covered news content. This is to ensure the integrity of the non-discrimination requirements and that other forms of news (such as foreign news or citizen journalism content) are not used as replacement content.]

Division 6—Bargaining

Subdivision A—Starting bargaining

52X Bargaining news business corporation for a registered news business

(1) The registered news business corporation for a registered news business is the bargaining news business corporation for the registered news business.

(2) Subsection (3) applies if:

(a) a registered news business corporation (the first corporation) for a registered news business (the first news business) makes an agreement in writing with another registered news business corporation (the second corporation) for another registered news business; and

(b) the agreement provides that the second corporation should be the bargaining news business corporation for the first news business.

(3) Despite subsection (1), the second corporation is the bargaining news business corporation for the first news business.

(4) To avoid doubt, a registered news business corporation can be the bargaining news business corporation for 2 or more registered news businesses.

52Y Notification of bargaining

(1) The bargaining news business corporation for a registered news business may notify a responsible digital platform corporation for a digital platform service that it wishes to bargain over one or more specified issues relating to the registered news business’ covered news content made available by the digital platform service.

(2) If the bargaining news business corporation is the bargaining news business corporation for 2 or more registered news businesses, a notification made for the purposes of subsection (1) may relate to some or all of those registered news businesses.

(3) If the responsible digital platform corporation is the responsible digital platform corporation for 2 or more digital platform services, a notification made for the purposes of subsection (1) may relate to some or all of those digital platform services. If so, references in this Division and in Division 7 to the digital platform service are taken to include references to all of the digital platform services to which the notification relates.

(4) A notification made for the purposes of subsection (1) must set out the following matters:

(a)  the bargaining news business corporation;

(b)  each registered news business to which the notification relates;

(c)  the digital platform service;

(d)  the responsible digital platform corporation for the digital platform service;

(e)  the specified issues mentioned in subsection (1);

(f)  if regulations made for the purposes of this paragraph specify other matters—those matters.

(5) A notification made for the purposes of subsection (1) cannot be later varied to relate to a registered news business that was not set out in the notification.

(6) If a registered news business to which the notification relates is operated or controlled by the ABC or SBS, the specified issues mentioned in subsection (1) cannot include an issue that concerns the remuneration for the registered news business for the making available of the registered news business’ covered news content by the digital platform service.

[⚑ EM: 1.108 A registered news business is not required to indicate an intention to bargain. If a registered news business chooses not to bargain, the minimum standards will still apply in respect of that news business’ covered news content.

1.109 If two or more news business corporations join together to negotiate with a responsible digital platform corporation, that collective bargaining will be specifically authorised for the purposes of subsection 51(1) of the CCA.

…

1.118 The SBS and ABC may bargain in relation to any issues they specify, including about the minimum standards. However, they may not bargain about remuneration for making available their covered news content on a digital platform service.]

Subdivision B - Bargaining obligations

52Z Application of Subdivision

This Subdivision applies if a notification is made for the purposes of subsection 52Y(1).

52ZA Bargaining parties, bargaining issues and represented registered news businesses

(1) The bargaining parties are as follows:

(a) the bargaining news business corporation that made the notification;

(b) the responsible digital platform corporation for the digital platform service to which the notification relates.

(2) The bargaining issues are the specified issues in the notification (as mentioned in paragraph 52Y(4)(e)).

(3) Each registered news business to which the notification relates is a represented registered news business.

52ZB Obligation to negotiate in good faith

Each bargaining party must negotiate in good faith over each bargaining issue.

[⚑ EM: 1.111 There may be a range of conduct that would indicate that parties have not negotiated in good faith.]

52ZC Information requests

(1) The bargaining news business corporation may request the responsible digital platform corporation to give it:

(a) information and data relating to the digital platform service that is relevant to assessing the benefit that the digital platform service receives from covered news content of each represented registered news business; and

(b) information and data relating to the digital platform service that is relevant to assessing the benefit that the digital platform service receives from news content of every Australian news business.

(2) The bargaining news business corporation may request the responsible digital platform corporation to give it information and data relating to the digital platform service that is relevant to assessing whether a payment in respect of the digital platform service in relation to the bargaining issues would place an undue burden on the commercial interests of the digital platform service.

(3) The responsible digital platform corporation must comply with a request under subsection (1) or (2).

(4) The responsible digital platform corporation may request the bargaining news business corporation to give it information and data that is relevant to assessing the costs incurred by each represented registered news business in creating covered news content.

(5) The bargaining news business corporation must comply with a request under subsection (4).

(6) A request under subsection (1), (2) or (4) must:

(a)  be made in writing; and

(b)  if regulations made for the purposes of this paragraph specify other requirements—comply with those requirements.

(7) Nothing in this section requires the giving of information the publication of which would reveal a trade secret.

52ZD Information requests - use of information

(1) Subsection (2) applies if the responsible digital platform corporation gives information or data (or both) to the bargaining news business corporation in order to comply with subsection 52ZC(3).

(2) The bargaining news business corporation must ensure that the information or data (or both) are not used for a purpose other than a purpose in relation to bargaining under this Division or arbitration under Division 7.

(3) Subsection (4) applies if the bargaining news business corporation gives information or data (or both) to the responsible digital platform corporation in order to comply with subsection 52ZC(5).

(4) The responsible digital platform corporation must ensure that the information or data (or both) are not used for a purpose other than a purpose in relation to bargaining under this Division or arbitration under Division 7.

Division 7—Arbitration about remuneration issue

Subdivision A—Preliminary

52ZE Register of bargaining code arbitrators

(1) The ACMA must establish and keep a register of bargaining code arbitrators.

(2) The ACMA must ensure that at least 10 persons are listed on the register.

(3) Each such person must be a person experienced in legal matters, economic matters or industry matters.

Subdivision B—Starting arbitration

52ZF Notification of arbitration

(1) This section applies if:

(a) a notification has been made for the purposes of subsection 52Y(1); and

(b) the digital platform service is a designated digital platform service; and

(c) one of the bargaining issues (the remuneration issue ) concerns the remuneration for a registered news business for the making available of the registered news business’ covered news content by the digital platform service.

(2) Either of the bargaining parties may give a notice to the Commission that arbitration about the remuneration issue should start, if:

(a) the bargaining parties have attended at least one day of mediation in relation to the remuneration issue; and

(b) either:

(i) the bargaining parties have not reached an agreement about terms for resolving the remuneration issue within 3 months after bargaining starts; or

(ii) the bargaining parties have agreed to arbitration about terms for resolving the remuneration issue no earlier than 10 business days after bargaining starts.

(3) The notice must:

(a) be in writing; and

(b) if regulations made for the purposes of this paragraph specify requirements—meet those requirements.

[⚑ EM: 1.119 If a registered news business corporation other than the ABC or SBS indicates an intention to bargain with a responsible digital platform corporation and an agreement about remuneration in relation to designated digital platform services is not reached within a three month period, the matter will be subject to compulsory arbitration. Arbitration will only take place if the bargaining parties have attended at least one day of mediation. …

1.120 If those preconditions are met, either of the bargaining parties may give a written notice to the ACCC that arbitration should start. The Chair of the arbitral panel will then notify the bargaining parties that arbitration will start on a specified day. That day must be within five business days of the notice being given to the ACCC.

1.121 The final code will mandate mediation within the three month bargaining period, if an agreement has not been reached. Bargaining parties will be free to attend private mediation at any time.

1.122 It is expected that the final code will also allow a news business corporation to elect to not proceed to arbitration.

1.123 Arbitration may also start earlier than three months after the bargaining news business corporation indicated an intention to bargain, if both parties agree to proceed to arbitration earlier. This can occur no earlier than 10 business days after the bargaining news business corporation indicated an intention to bargain.]

52ZG Formation of arbitration panel

(1) This section applies if a notice is given under subsection 52ZF(2).

(2) An arbitral panel is to be formed to arbitrate about the remuneration issue.

(3) The membership of the panel is to be comprised of:

(a)  the Chair; and

(b)  unless the bargaining parties agree that the sole member of the panel is the Chair—2 other members.

(4) The members of the panel are to be appointed by agreement between the bargaining parties.

(5) The parties may agree to appoint persons who are, or are not, listed on the register of bargaining code arbitrators.

(6) If the bargaining parties cannot agree on the appointment of one or more of the members, the ACMA must make that appointment or those appointments.

(7) The ACMA may only make an appointment of a person who is listed on the register of bargaining code arbitrators.

52ZH Chair to notify start of arbitration

(1) The Chair must notify the bargaining parties that arbitration about terms for resolving the remuneration issue will start on a specified day that is no later than 5 business days after the notice is given under subsection 52ZF(2).

(2) The notice must:

(a) be in writing; and

(b) if regulations made for the purposes of this paragraph specify requirements—meet those requirements.

52ZJ Bargaining parties’ agreement about extra services

(1) The bargaining parties may agree, in writing, that specified services other than the digital platform service should be dealt with in the arbitration.

(2) If the bargaining parties make the agreement before the start of the arbitration, Subdivision C applies as if:

(a) the remuneration issue related to the digital platform service and the specified services mentioned in subsection (1); and

(b) references in that Subdivision to the digital platform service included references to those specified services.

[EM: 1.129 Arbitration is only about remuneration in relation to a designated digital platform service specified in a determination instrument made by the Treasurer. However, the bargaining parties can agree to arbitration about an expanded set of services.]

Subdivision C - Final offer arbitration

52ZK Application

This Subdivision applies if the Chair has given notice under section 52ZH

52ZL Obligation to participate in arbitration in good faith

Each bargaining party must participate in the arbitration in good faith.

52ZM Mediation during arbitration

The Chair may direct the bargaining parties to attend mediation about the remuneration issue at any time after the arbitration starts. The bargaining parties must comply with the direction.

52ZN Agreed early termination of arbitration

If, before the panel has made a determination in accordance with section 52ZO(1), the bargaining parties agree that the arbitration should terminate, the arbitration terminates in accordance with that agreement.

52ZO Final offer arbitration

(1) The panel is to make a determination about the terms for resolving the remuneration issue that:

(a) is in accordance with subsections (5) and (6) (final offer arbitration); and

(b) sets out an amount (the remuneration amount) for remunerating the registered news business for the making available of the registered news business’ covered news content by the digital platform service for one year.

(2) Each of the bargaining parties must:

(a) submit to the panel a final offer for what the remuneration amount should be, no later than 10 business days after the start of arbitration; and

(b) give a copy of the final offer to the other bargaining party on the same day that it submits the final offer to the panel; and

(c) give a copy of the final offer to the Commission on the same day that it submits the final offer to the panel

(3) The final offers, once submitted, cannot be withdrawn or amended.

(4) The final offers cannot be more than 30 pages in length.

(5) The panel must accept one of the final offers unless the panel considers that each final offer is not in the public interest because it is highly likely to result in serious detriment to:

(a) the provision of covered news content in Australia; or

(b) Australian consumers.

(6) If the panel does not accept one of those final offers, it must ascertain the remuneration amount by adjusting one of those offers in a manner that results in that offer being in the public interest.

[⚑ EM: 1.137 It is expected that the final code will detail:

• allowance for parties to continue to negotiate in parallel to the arbitration, and to reach a negotiated agreement that will cease the arbitration at any point until the final decision is made by the arbitral panel; and

• that arbitration will only result in agreements for one year.]

52ZP Matters to consider in arbitration, etc.

(1) In complying with subsection 52ZO(1), the panel must ensure that the terms for resolving the remuneration issue are compatible with the bargaining parties’ obligations under subsections 52ZT(3) and (4).

(2) In complying with subsection 52ZO(1), the panel must consider the following matters:

(a) the direct benefit (whether monetary or otherwise) of the registered news business’ covered news content to the digital platform service;

(b) the indirect benefit (whether monetary or otherwise) of the registered news business’ covered news content to the digital platform service;

(c) the cost to the registered news business of producing covered news content;

(d) whether a particular remuneration amount would place an undue burden on the commercial interests of the digital platform service.

(3) In considering the indirect benefit mentioned in paragraph (2)(b), the panel must:

(a) firstly, consider the total indirect benefit of Australian news to the digital platform service (including increased usage of the digital platform service and public perception benefits arising from the inclusion of Australian news); and

(b) secondly, consider the extent to which that total indirect benefit is attributable to the registered news business’ covered news content.

[⚑ EM: 1.141  Indirect benefit is intended to encompass public perception benefits arising from the inclusion of Australian news. This is because the making available of news sources on their digital platform services increases user trust and reliance on these services. Indirect benefits also flow due to increased use of digital platform services because of the presence of covered news content generally.

1.142 The Bill does not specify what form the remuneration will take, which will allow the registered Australian news business and responsible digital platform corporation to determine their own flexible approach to the remuneration (e.g. lump sum, regular payments calculated with respect to volumes or amounts of news content, or other measures of user engagement). However, if a party submits offers for non-lump sum payments, these offers must include estimates amounting to a single year’s payment.

1.143 If the panel does not accept one of the final offers made by the parties, it must adjust one of those offers in a manner that takes into account the benefit that the digital platform service receives in relation to the news media content and results in that offer being in the public interest.]

52ZQ Other requirements for arbitration determination

(1) The panel must make the determination no later than 45 business days after the start of arbitration.

(2) If the Chair is not the sole member of the panel:

(a) the panel must endeavour to make the determination by unanimous decision of the members of the panel; and

(b) where a unanimous decision is not possible, the panel must make the determination by majority decision of the members of the panel.

52ZR Submissions of parties

(1) Each bargaining party may give to the panel a submission about the final offer of the other bargaining party, no later than 5 business days after the panel has received both final offers (in accordance with paragraph 52ZO(2)(a)).

(2) The submission can only deal with issues that are dealt with in any material accompanying either of the final offers.

(3) The submission cannot be more than 20 pages in length.

(4) If a bargaining party gives the panel a submission under subsection (1), the bargaining party must give the other bargaining party and the Commission a copy of the submission on the same day that it gives the panel the submission.

52ZS Role of Commission

(1) The Commission may give to the panel a submission about both final offers, no later than 10 business days after the Commission has received both final offers (in accordance with paragraph 52ZO(2)(c)).

(2) A submission of the Commission under subsection (1) may provide additional sources of information to assist the panel to fulfil its obligations in considering the final offers of both parties.

(3) If the Commission gives the panel a submission under subsection (1), it must give the bargaining parties a copy of the submission on the same day that it gives the submission to the panel.

(4) Each bargaining party may give to the panel a submission about the Commission’s submission, no later than 5 business days after the bargaining party has received the Commission’s submission.

(5) The bargaining party’s submission cannot be more than 20 pages in length.

(6) If a bargaining party gives the panel a submission under subsection (4), it must give the other bargaining party and the Commission a copy of the submission on the same day that it gives the submission to the panel.

[⚑ EM: 1.150 Consistent with existing arrangements for Part IVB industry codes, the ACCC will have the power to compel information or documents to be provided to it. The powers will only relate to information or documents that the code requires the responsible digital platform corporation to keep, generate or publish.

1.151 A responsible digital platform corporation will be required to keep the following records of certain matters which the ACCC could compel:

• records of documents provided to registered news business corporations through the code process; and

• records of internal decisions that relate to the minimum standards.

1.152 The ACCC’s information gathering powers under section 155 will also be available.]

Subdivision D—Effect of arbitral determination

52ZT Effect and enforcement of determination by panel

(1) This section applies if the panel has made a determination in accordance with section 52ZO(1).

(2) The bargaining parties must comply with the determination.

(3) The bargaining parties must:

(a) make a written agreement that the responsible digital platform corporation will ensure the payment of the remuneration amount set out in the determination to the registered news business corporation; and

(b) make that written agreement no later than 30 business days after the panel made the determination.

(4) The written agreement must provide that the payment must be made in a particular way (such as being paid as a lump sum).

Division 8 - Enforcement

52ZU Infringement Notices

(1) Subject to subsection (2), Division 2A of Part IVB applies in relation to an alleged contravention of a provision of this Part in the same way in which it applies in relation to an alleged contravention of a civil penalty provision of an industry code (within the meaning of that Part).

(2) For the purposes of applying Division 2A of Part IVB in accordance with subsection (1), treat the reference in
paragraph 51ACF(a) to 50 penalty units as being a reference to 600 penalty units.

52ZV Joint and several liability fro pecuniary penalties

(1) Subsection (2) applies if:

(a) a responsible digital platform corporation for a digital platform service is liable to a pecuniary penalty in accordance with section 76 because it contravened a provision of this Part; and

(b) the responsible digital platform corporation is not the service’s designated digital platform corporation.

(2) The responsible digital platform corporation and the service’s designated digital platform corporation are jointly and severally liable for the pecuniary penalty.

[⚑ EM: Civil Penalties

1.153 Civil penalties apply for contraventions of the new Part IVBA. The maximum civil penalty, for an act or omission, is the greater of:

• $10 million;

• if the court can determine the total value of the benefits that have been obtained and that are reasonably attributable to the act or omission – three times that total value;

• if the court cannot determine the total value of those benefits – 10% of the annual turnover of the body corporate during the period of 12 months ending at the end of the month in which the act or omission occurred. …

1.154 This is consistent with the maximum penalties applicable under section 76 of the CCA for a number of contraventions of that Act.

1.155 Compliance by responsible digital platform corporations and registered news business corporations with all of their respective obligations under the code is critical for the integrity of the scheme and the achievement of its objectives. The maximum civil penalty reflects the seriousness of the most egregious instances of non-compliance with the code. The flexibility in penalty amount is provided to enable the ACCC to seek penalties proportionate to the conduct. Minor breaches are not expected to attract the maximum penalty under the code.

1.156 For the purposes of calculating annual turnover under the third limb of the maximum civil penalty, only the responsible digital platform corporation’s turnover connected with the supply of goods and services in Australia will be relevant.

1.157 If a responsible digital platform corporation has contravened the new Part IVBA and it is not the designated digital platform corporation (that is, it is an Australian entity), both the responsible digital platform corporation and the designated digital platform corporation are jointly and severally liable for the civil penalty. …

1.158 The final code will specify which provisions contravene the code and when civil penalties will apply.

Infringement notices

1.159 The ACCC may issue an infringement notice for a contravention of the new Part IVBA. The infringement notice penalty amount is 600 penalty units. This is consistent with the infringement notice penalty amount applicable to certain contraventions of the Australian Consumer Law by listed corporations.

Other enforcement and redress mechanisms

1.160 The ACCC may accept a court enforceable undertaking under section 87B of the CCA in relation to matters arising under the code. These enforceable commitments may allow for individual solutions to compliance issues that arise in relation to the code.

1.161 Non-punitive orders and other compensatory orders will also apply to contraventions of Part IVBA.

1.162 The new Part IVBA will also enable a news business to take action seeking damages for loss or damage by conduct of a digital platform in contravention of Part IVBA.]

Division 9 - Miscellaneous

52ZW Exceptions to Part IV

For the purposes of subsection 51(1), an arrangement between 2 or more registered news business corporations for the purposes of negotiating with a responsible digital platform corporation in relation to covered news content is specified and specifically authorised.

[incidental amendments are made to other parts of the Act, including amending s 76 (pecuniary penalties) to add

(1)(a)(iaa) a provision of Part IVBA

and to amend 76(1A)(aa) to add reference to Part IVBA.

Section 80 (damages) is also amended to make reference to this part.]