Information Interruptus: Bing, Google and the News Media Bargaining Code

It’s looking a touch quixotic, but the News Media Bargaining Code has become Australia’s weapon of choice in attempting to redistribute proceeds from big tech into the coffers of a withering fourth estate.  It has now reached a point of sufficient concern for Google as to become threatening, winding its way to a Senate Committee Inquiry before going to Parliament for a vote.

The Code aims to remunerate news media businesses for content they generate that is subsequently found through searches on digital platforms.  The body behind its drafting, the Australian Competition and Consumer Commission, states that it would “address the fundamental bargaining power imbalance between Australian news media businesses and major digital platforms.”  Such an imbalance has led to news outlets “accepting less favourable terms for inclusion of news on digital platform services than they would otherwise agree to.”

The Code encourages tech giants and news outlets to engage in commercial negotiations outside its remit and establish a framework for negotiations where the parties bargain in good faith in coming to binding agreements.  Arbitration is available to determine the remuneration in question should the parties find themselves unable to reach an agreement.

The redistribution measure in the draft Code amounts to a “link tax” that would only serve to benefit core news media and require them to be alerted prior to any upcoming algorithmic rankings made by the tech giants.  Those companies are also required to yield collected consumer data.  As the ACCC describes it, Facebook and Google would have to furnish “information about how and when [they] make available user data collected through users’ interactions with news content.”

Mandating such data collection converts Google into a hoover of consumer information.  Tech giants, according to the code in its current form, have to list all collected data which may, or may not be handed over without the consent of the user.

This is a field with many villains and few heroes.  Google has not covered itself in glory by threatening to pull its search engine from Australia in what would amount to an act of information interruptus.  A statement by Mel Silva, Managing director for Google Australia, excoriates the Bargaining Code for potentially undermining “the benefits of the internet for millions of Australians”.  The company takes issue with having to pay publishers for links – not even the article itself – that would pop up in the search results.  “Right now, no website or search engine pays to connect people to other sites through links.  This law would change that, making Google pay to provide links for the first time in our history.”

On January 31, Google published 12 answers on questions pertaining to the Code.  They are naturally self-flattering. Market alternatives are suggested.  “Instead of paying for links, we’re proposing to pay publishers through Google News Showcase, our AU$1.3 billion global investment in news partnerships over the next three years.”  A commercial arbitration model based on News Showcase is also suggested, “one that would let arbitrators look at the comparable value of similar transactions, rather than an unpredictable process which looks at one side’s costs and discounts the value Google provides publishers.”

Australian politicians smell a chance for undeserved popularity.  Other platforms are also sensing a chance to move in.  Microsoft, in a move that can only draw some suspicion, supports the Code and is willing to supplant Google’s role in Australia should that search engine exit.  Company president Brad Smith and Microsoft CEO Satya Nadella have already spoken to Prime Minister Scott Morrison and Communications Minister Paul Fletcher.  Smith was keen to butter up the officials, with Microsoft “committed to Australia and the news publishers that are vital to the country’s democracy.”  Public interest journalism faced “many challenges from the digital era” and supported the ACCC in its efforts to confront them.  The proposed code “reasonably attempts to address the bargaining power imbalance between digital platforms and Australian news businesses.”

Given that Microsoft, with its search engine Bing, is a midget relative to the monster that is Google (Google’s Australia share is 94.5%, Bing’s 3.6%), this sounds much like the loser’s bid to claim ground yielded by a great and bullying power.  Smith promises further investment “to ensure Bing is comparable to our competitors”.

Clearly, the message from that company has found a willing audience in the Australian government and among such think tanks as the Australia Institute’s Centre for Responsible Technology.  Morrison found Microsoft’s confidence appealing.  Admitting to having no expertise on the subject of Google’s influence in the search market, Fletcher was still delighted by Microsoft’s interest “in the market opportunity in Australia”.  Bing is also attractive for not personalising searches to the user.  Bing, suggested one academic, “doesn’t know and frankly doesn’t care that you’re in the market for yoga pants, for example.”

For all that backslapping praise, Bing comes with its problems.  The engine hosts its own rich share of misinformation and disinformation.  Conspiracy theories find comfortable spaces to occupy in the search algorithms. It privileges student-essay sites, the bane of many university instructors.  Chris Duckett and Null Pointer further suggest that Bing will leave the general or casual searcher generally satisfied but not one keen on trawling the deeper subjects.  By way of contrast, Dave Nilsson of the digital marketing agency ConvertedClick is sold on the image and video searches on Bing.  Good if you like pictures and prettiness, then.

There is much wishful thinking behind the Code, not least in the pigs might fly notion that individual journalists will necessarily benefit from it.  Reining in the gargantuan power of big tech monsters is an admirable position to take and Australian politicians can draw upon precedent.  They might have, for instance, busied themselves with drafting such laws modelled on the European Union’s General Data Protection Regulation.  But a model that props up such failing entities as News Corp and actually seeks to channel cash into the long stained and grubby pockets of media moguls is a questionable proposition.  Australia finds itself caught between a blackmailing Silicon Valley giant and such ruthless purveyors of mind numbing trash as Rupert Murdoch.  Some choice.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: