Going Dark
Tama Leaver
Abstract
The first two months of 2021 saw Google and Facebook ‘go dark’ in terms of news content on the Australia versions of their platforms. In January, Google ran a so-called “experiment” which removed or demoted current news in the search results available to a segment of Australian users. While Google was only darkened for some, in February news on Facebook went completely dark, with the company banning all news content and news sharing for users within Australian. Both of these instances of going dark occurred because of the imminent threat these platforms faced from the News Media Bargaining Code legislation that was due to be finalised by the Australian parliament. This article examines how both Google and Facebook responded to the draft Code, focussing on their threats to go dark, and the extent to which those threats were carried out. After exploring the context which produced the threats of going dark, this article looks at their impact, and how the Code was reshaped in light of those threats before it was finally legislated in early March 2021. Most importantly, this article outlines why Google and Facebook were prepared to go dark in Australia, and whether they succeeded in trying to prevent Australia setting the precedent of national governments dictating the terms by which digital platforms should pay for news content. From the Digital Platforms Inquiry to the Draft Code In July 2019, the Australian Treasurer released the Digital Platforms Inquiry Final Report which had been prepared by the Australian Competition and Consumer Commission (ACCC). It outlined a range of areas where Australian law, policies and practices were not keeping pace with the realities of a digital world of search giants, social networks, and streaming media. Analysis of the submissions made as part of the Digital Platforms Inquiry found that the final report was “primarily framed around the concerns of media companies, particularly News Corp Australia, about the impact of platform companies’ market dominance of content distribution and advertising share, leading to unequal economic bargaining relationships and the gradual disappearance of journalism jobs and news media publishers” (Flew et al. 13). As such, one of the most provocative recommendations made was the establishment of a new code that would “address the imbalance in the bargaining relationship between leading digital platforms and news media businesses” (Australian Competition and Consumer Commission, Digital Platforms Inquiry 16). The ACCC suggested such a code would assist Australian news organisations of any size in negotiating with Facebook, Google and others for some form of payment for news content. The report was released at a time when there was a greatly increased global appetite for regulating digital platforms. Thus the battle over the Code was watched across the world as legislation that had the potential to open the door for similar laws in other countries (Flew and Wilding). Initially the report suggested that the digital giants should be asked to develop their own codes of conduct for negotiating with news organisations. These codes would have then been enforced within Australia if suitably robust. However, after months of the big digital platforms failing to produce meaningful codes of their own, the Australian government decided to commission their own rules in this arena. The ACCC thus prepared the draft legislation that was tabled in July 2020 as the Australian News Media Bargaining Code. According to the ACCC the Code, in essence, tried to create a level playing field where Australian news companies could force Google and Facebook to negotiate a ‘fair’ payment for linking to, or showing previews of, their news content. Of course, many commentators, and the platforms themselves, retorted that they already bring significant value to news companies by referring readers to news websites. While there were earlier examples of Google and Facebook paying for news, these were largely framed as philanthropy: benevolent digital giants supporting journalism for the good of democracy. News companies and the ACCC argued this approach completely ignored the fact that Google and Facebook commanded more than 80% of the online advertising market in Australia at that time (Meade, “Google, Facebook and YouTube”). Nor did the digital giants acknowledge their disruptive power given the bulk of that advertising revenue used to flow to news companies. Some of the key features of this draft of the Code included (Australian Competition and Consumer Commission, “News Media Bargaining Code”): Facebook and Google would be the (only) companies initially ‘designated’ by the Code (i.e. specific companies that must abide by the Code), with Instagram included as part of Facebook. The Code applied to all Australian news organisations, and specifically mentioned how small, regional, and rural news media would now be able to meaningfully bargain with digital platforms. Platforms would have 11 weeks after first being contacted by a news organisation to reach a mutually negotiated agreement. Failure to reach agreements would result in arbitration (using a style of arbitration called final party arbitration which has both parties present a final offer or position, with an Australian arbiter simply choosing between the two offers in most cases). Platforms were required to give 28 days notice of any change to their algorithms that would impact on the ways Australian news was ranked and appeared on their platform. Penalties for not following the Code could be ten million dollars, or 10% of the platform’s annual turnover in Australia (whichever was greater). Unsurprisingly, Facebook, Google and a number of other platforms and companies reacted very negatively to the draft Code, with their formal submissions arguing: that the algorithm change notifications would give certain news companies an unfair advantage while disrupting the platforms’ core business; that charging for linking would break the underlying free nature of the internet; that the Code overstated the importance and reach of news on each platform; and many other objections were presented, including strong rejections of the proposed model of arbitration which, they argued, completely favoured news companies without providing any real or reasonable limit on how much news organisations could ask to be paid (Google; Facebook). Google extended their argument by making a second submission in the form of a report with the title ‘The Financial Woes of News Publishers in Australia’ (Shapiro et al.) that argued Australian journalism and news was financially unsustainable long before digital platforms came along. However, in stark contrast the Digital News Report: Australia 2020 found that Google and Facebook were where many Australians found their news; in 2020, 52% of Australians accessed news on social media (up from 46% the year before), with 39% of Australians getting news from Facebook, and that number jumping to 49% when specifically focusing on news seeking during the first COVID-19 pandemic peak in April 2021 (Park et al.). The same report highlighted that 43% of people distrust news found on social media (with a further 29% neutral, and only 28% of people explicitly trusting news found via social media). Moreover, 64% of Australians were concerned about misinformation online, and of all the platforms mentioned in the survey, respondents were most concerned about Facebook as a source of misinformation, with 36% explicitly indicating this was the place they were most concerned about encountering ‘fake news’. In this context Facebook and Google battled the Code by launching a public relations campaigns, appealing directly to Australian consumers. Google Drives a Bus Across Australia Google’s initial response to the draft Code was a substantial public relations campaign which saw the technology company advocating against the Code but not necessarily the ideas behind it. Google instead posited their own alternative way of paying for journalism in Australia. On the main Google search landing page, the usually very white surrounds of the search bar included the text “Supporting Australian journalism: a constructive path forward” which linked to a Google page outlining their version of a ‘Fair Code’. Popup windows appeared across many of Google’s services and apps, noting Google “are willing to pay to support journalism”, with a button labelled ‘Hear our proposal’. Figure 1: Popup notification on Google Australia directing users to Google’s ‘A Fair Code’ proposal rebutting the draft Code. (Screen capture by author, 29 January 2021) Google’s popups and landing page links were visible for more than six months as the Code was debated. In September 2020, a Google blog post about the Code was accompanied by a YouTube video campaign featuring Australia comedian Greta Lee Jackson (Google Australia, Google Explains Arbitration). Jackson used the analogy of Google as a bus driver, who is forced to pay restaurants for delivering customers to them, and then pay part of the running costs of restaurants, too. The video reinforced Google’s argument that the draft Code was asking digital platforms to pay potentially enormous costs for news content without acknowledging the value of Google bringing readers to the news sites. However, the video opened with the line that “proposed laws can be confusing, so I'll use an analogy to break it down”, setting a tone that would seem patronising to many people. Moreover, the video, and Google’s main argument, completely ignored the personal data Google receives every time a user searches for, or clicks on, a news story via Google Search or any other Google service. If Google’s analogy was accurate, then the bus driver would be going through every passenger’s bag while they were on the bus, taking copies of all their documents from drivers licenses to loyalty cards, keeping a record of every time they use t