THE TUSSLE BETWEEN NEWS MEDIA AND DIGITAL PLATFORMS – WHAT INDIA CAN LEARN FROM AUSTRALIA AND THE EU
Updated: Nov 8, 2021
[Aileen Aditi Sundardas is a fifth-year student at Jindal Global Law School]
With the onset of the COVID-19 pandemic and the requirement for social distancing norms, the way in which we experience daily life has been altered drastically. The importance of technology took a centre stage as people began relying on it in order to minimize their interactions with the physical world. In fact, due to the concerns posed by the pandemic, people began to switch from print media to online news editions and digital platforms. This has had a negative impact on journalists as the newspaper industry struggled to cope. In India, this was the starting point of the rising concerns regarding the use of news media content by big tech digital platforms such as Google and Facebook.
Consequently, in an effort to protect publishers and the news media industry in February 2021, the Indian Newspaper Association (INS), an association of Indian publishers, wrote a letter to Google asking for compensation for the use of their content on the Google platform and for an 85% share of the ad revenues. The chairman of the INS Digital Committee stated that they might approach the Competition Commission of India (CCI) and the government pursuant to this issue. In addition to this, veteran politician Sushil Kumar Modi, stated the need for the enactment of a law to make OTT platforms and big techs such as Google, Facebook, YouTube, etc. pay print and news channels for the use of their content, in the Rajya Sabha.
It is evident that this issue has gained a lot of traction with the onset of the pandemic and it is pertinent to note that it remains unclear as to how India is approaching this issue. Therefore, in this context it is crucial that we analyse the already existing frameworks in Australia and the European Union (EU) in order to comprehend the approach that would be ideal for the stakeholders in the Indian market.
The Australian Approach
While it is a fairly recent legislation, the Australian Competition and Consumer Commission (ACCC) drafted The News Media Bargaining Code 2021 (Code). This was essentially formulated by invoking principles of competition law such as abuse of dominance, as they identified a “significant bargaining power imbalance” between major digital platforms and publishers. The Digital Platforms Inquiry Report conducted by the ACCC stipulated that Google had substantial market power in the supply of search advertising in Australia and Facebook had substantial market power in the supply of display advertising in Australia thereby making it evident that they had a significant bargaining power in comparison to the news media outlets.
As per the ACCC’s concept paper wherein the ACCC sought the views of stakeholders in the formation of the Code, it stated that the ‘use’ of news media constitutes featuring of article headlines, hyperlinks to news content hosted on news media own platforms, featuring of short extracts, reproducing news in text, audio, video, image, etc. This was crucial in order to determine what would constitute ‘use’ of news media content for the purposes of negotiation and compensation. The Code also lays down a mandatory negotiation period of 90 days in order to determine an appropriate compensation and upon failure to come to an agreement, the parties must go through a mandatory final-offer binding arbitration procedure. It is evident that the ACCC carved out a Code that made various considerations and chalked out thresholds as to what would trigger the implementation of the Code and it has provided quick solutions to ensure efficiency in the market.
By relying on principles of competition law, the Code is unique as it ensures ex-ante regulation of entities with significant market power thereby laying down the market standard upfront. Digital markets are fast-moving, intricate and volatile and by opting for ex ante regulation a level of sophistication to the dynamic digital economy has been introduced. It would not be prudent to allow a harm to manifest only after which an action is taken to undo the said harm.
The European Approach
The EU has taken a very different approach as compared to Australia. Rather than drawing from the principles of competition law, the EU relied on Intellectual Property Rights. The EU Directive which was adopted in April 2019 essentially created a neighbouring right for press publishers which enables licensing of digital content to digital platforms by relying on intellectual property rights for protection. Neighbouring rights protect the legal interest of an author’s original work as under copyright law. Unlike the ACCC, the EU Directive is broadly worded and leaves a lot of ambiguity in terms of what would trigger its implementation.
This is problematic as it creates overarching rights of ownership in the news media and has the potential to impact the quality of news as the scope of the protection would extend beyond the originality requirement under copyright law. The EU Directive has also been criticized for not having any economic justification. In Germany, the neighbouring rights for press publishers with regards to displaying snippets or short quotes from content such as news articles had been introduced in 2013. Google therefore stopped the use of snippets subsequent to the introduction of these rights due to which it was accused of abusing its dominant position in the market. However, the German competition watchdog did not find Google to be abusing its dominant position.
Recently, when France adopted the EU Directive, Google behaved in a similar manner and refused to use snippets altogether. In this case, the French competition authority held that Google’s actions were anti-competitive in nature as it was circumventing the law and imposing unfair trading conditions. The behaviour displayed by Google in both Germany and France could cause serious harm to the press industry and these actions were criticized as not only did the purpose behind the introduction of the neighbouring rights fail, it severely harmed market competition. The ambiguity created by the introduction of neighbouring rights to protect publishers has left the press industry vulnerable. The contradictory findings in Germany and France shows that the EU approach is not efficient and that it does not inspire faith in the legislation.
The Way Forward for India
Indian publishers have been deeply affected by the pandemic and the sudden reliance on technology only makes it much more difficult for the news media to cope. It is evident from the above analysis that the EU approach is problematic as not only has the legislation created more confusion for all the stakeholders involved but it has also not fulfilled its promise up until now which has had a significant impact on the market competition.
Therefore, it would make more sense to approach this concern by adopting an approach similar to that of Australia by invoking principles of competition law and drafting a legislation that provides for compensation for the use of news media content by digital platforms. It has also been suggested that the CCI should start a suo motu investigation and look into the market dynamics in order to protect publishers rights and prevent players with significant market power from using content without compensating the publishers. It is high time that India brings in a legislation that protects the news media industry from digital platforms. The news media content that we engage with on a regular basis plays a vital role in society and therefore it is important that some form of regulation is introduced to protect the Indian publishers’ rights.