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December 10, 2021updated 30 Sep 2022 10:50am

New Zealand news industry battles for collective bargaining rights as Australian rivals benefit from big tech payouts

By William Turvill

A group of New Zealand news publishers has applied to the island country’s competition regulator for the power to engage in collective bargaining with Google and Facebook.

The Kiwi journalism industry is one of several around the world that is seeking to follow the example of Australia, where regulatory changes have enabled news companies to strike lucrative cash-for-content deals with the tech giants.

In New Zealand, according to one publisher spoken to by Press Gazette, the need for such deals is made particularly urgent because of the situation in Australia. Duncan Greive, founder and publisher of the Spinoff, explained that his outlet and others compete directly with Australian news companies that are benefiting from big tech payments now. 

As in Australia, the tech giants are likely to lobby against any regulatory intervention in this area.

Facebook – or Meta, as it is now known at a corporate level – has already come out fighting in response to the application. In a submission to the Commerce Commission, Meta claimed that news is “highly substitutable” on its platforms. The company made the same claim in Australia during Canberra’s news media bargaining code consultation.

The New Zealand publishing group’s application to the Commerce Commission makes dozens of references to the Australian Competition and Consumer Commission (ACCC), which was the architect of new legislation in Australia.

New Zealand’s government, led by Jacinda Ardern, does not appear to have immediate plans to introduce a version of Australia’s news media bargaining code.

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But media minister Kris Faafoi recently called on Google and Facebook to “engage with New Zealand media entities to reach meaningful, fair and equitable arrangements for content usage”.

Publishers believe that collective bargaining power would help them secure such deals. Currently, New Zealand competition laws prevent publishers from banding together.

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Why publishers want the power to negotiate together

The application for collective bargaining was made to the Commerce Commission by the News Publishers’ Association of New Zealand (NPA), a membership organisation that includes New Zealand Herald publisher NZME, Stuff and Allied Press.

As well as negotiating for its members, the NPA said that it would welcome participation from other Kiwi news publishers. The Spinoff, run by Duncan Greive, was listed as a non-member outlet that has already shown interest in collaborating with the NPA.

Since the application was filed on 25 November, New Zealand broadcasters have written to the Commerce Commission suggesting that they too should be allowed to be part of the collective negotiation. They would be excluded under the original wording of the NPA’s application.

The NPA-led group is specifically seeking ten-year authorisation to collectively negotiate with Google and Facebook “to secure fair compensation to individual publishers for the content the participants produce that appears on [the] digital platforms”.

The NPA believes it needs these powers because “there is a symbiotic (albeit significantly unbalanced) relationship between” Google and Facebook – known collectively as the duopoly because of their dominance of the online advertising market – and the country’s news media.

“Approximately only ten cents in every dollar spent on digital advertising in New Zealand goes to New Zealand news producers that invest in producing journalism and news content,” the NPA said.

“This lack of fair and appropriate remuneration to [news publishers], in particular in light of the significant reductions in advertising revenue as a result of successive Covid-19 lockdowns, is one of the factors imperilling the viability and sustainability of the [news media] sector.”

The NPA further noted that publishers are now having to use editorial resources to “combat disinformation/malinformation” circulating on platforms associated with Google (which owns YouTube) and Meta (Facebook, Instagram, Whatsapp).

The group believes that collective negotiation power will help publishers “achieve more efficient and effective negotiations” with the tech giants, and “may enable members to become more informed and improve their input into contracts due to members benefiting from greater levels of resourcing and expertise available”.

The application also stated that joint negotiations would help benefit “smaller regional and community titles” that might otherwise not have the resources to strike deals.

Collective bargaining reform was a key component of Australia’s code. It is also being sought by publishers in other countries including the US (through the Journalism Competition and Preservation Act) and Canada (which is expected to pass its own Australia-style legislation in the near future).

The Australian rules have enabled different organisations – including Country Press Australia and the Public Interest Publishers Alliance – to negotiate with Google and Facebook on behalf of small publishing members.

Once you do it in Australia, you have to do it in New Zealand’

To better understand the dynamics at play in New Zealand, Press Gazette spoke to Duncan Greive, the founder and publisher of the Spinoff, which is not an NPA member but is part of the application.

Greive says the Spinoff has benefited from significant financial support from Facebook through the Accelerator programme. But he does not believe these relationships should stop the New Zealand media from pursuing cash-for-content deals with the tech giants.

Greive also explains that the situation in Australia – where many publishers have already signed licensing deals with Google and Facebook – has created a competitive issue for the Kiwi media.

“Why we’re doing this now is because of what happened in Australia earlier this year,” he said. “There is a close economic relationship between New Zealand and Australia – we share a huge amount both culturally as well as legally. Fundamentally, there are half a million New Zealanders – equivalent to 10% of our population – who live in Australia.”

He suggests that the tech companies would like “what happened in Australia to be unique to Australia. But you can’t do that. You can’t do that to a much bigger economy that is so closely linked to ours – pour hundreds of millions of dollars into it and not expect that to have an impact here.

“Some of the people who got those settlements – most notably, the Guardian Australia – are literally on the ground here. They have small but growing teams and are actively selling memberships and audiences here. So the idea that this is a microcosm off to the side, and has no relationship to New Zealand, just doesn’t stand up.”

A Press Gazette investigation into Google News Showcase recently reported that Guardian Australia had signed a Showcase-related deal with Google worth an estimated AU$5m ($3.6m/£2.7m) per year. Australia’s largest news companies – News Corp, Nine, Seven West and ABC – are each thought to have signed deals worth tens of millions of dollars a year.

“Australia and New Zealand are basically one big economy,” says Greive. “You can’t just do it for those six states and then just not do it for New Zealand.

“Our journalism’s suffering enough without having the Murdochs and the Nines and Seven Wests with big war chests, saying, ‘You know what? We need these kind of journalists [in New Zealand], take them over.’

“That’s just not sustainable. Once you do it in Australia, you have to do it in New Zealand. You can say we don’t want to do it anywhere else in the world – and good luck to you – but you can’t do it in Australia and not New Zealand.”

Beyond the Commerce Commission’s judgment on his group’s application for collective bargaining, Greive is confident that his country – and others – will in time pass legislation similar to Australia’s news media bargaining code.

“I think it’s inevitable – it’s coming everywhere,” he says.

“We have a long history of looking at Australian legislation and saying something much like that could be created here.”

Facebook fightback: News is ‘highly substitutable’ for us

It is not clear how long the Commerce Commission will take to decide on the NPA group’s application. After the filing was made on 25 November, a consultation period was launched.

Within days, broadcasters Television New Zealand, Radio New Zealand and Discovery each filed suggested amendments to the application that would allow them to become part of negotiations with Google and Facebook.

On Wednesday 8 December, Meta also filed a response to the application, challenging several claims made by the NPA.

Meta’s arguments mirror many of those it made in the run-up to Australia introducing its news media bargaining code. The tech giant claims “news represents a very small proportion of content that people see when they use Facebook”. It told the Commerce Commission that news is “highly substitutable” for Facebook.

Meta went on to say that, because the company recognises that “news is a public good”, it has launched several financial initiatives – including the Accelerator programme – for the benefit of publishers.

Meta specifically referenced the success of the Spinoff, which has been the beneficiary of Accelerator funding, in its submission to the Commerce Commission. (Greive’s response to this: “They seem to think there’s a contradiction in our participation in and enthusiasm for the Accelerator programme, which I think fundamentally misunderstands what we’re talking about. I.e. training and intermittent and contingent grants, while very helpful, have only a limited impact on our ability to meet the boring realities of paying the humans to create journalism.”)

The tech company suggested it was inappropriate for the NPA to reference the findings of Australia’s ACCC. “Wholesale comparisons to Australia, without detailed consideration, are not appropriate,” it said. 

Meta also challenged the NPA’s reference to the cost that publishers rack up by fighting falsehoods that spread on social media.

“We note that the application refers to costs that are borne by New Zealand publishers to counter misinformation on our services,” Meta said.  “To assist the NZCC in its consideration of the application, we have outlined the considerable work we do to combat misinformation online.

“This includes policies and proactive detection technology to prohibit and remove fake accounts and harmful health misinformation, increasingly before people are exposed to it. It also includes our investment in third-party fact-checking and systems to reduce the distribution of content rated as false by our fact-checkers, and products to inform New Zealanders about misinformation and provide more context around the content they see on Facebook.”

The New Zealand media is likely to take issue with this characterisation.

In his interview with Press Gazette, conducted before Meta’s document was filed, Greive said: “We had a massacre – our worst act of modern terrorism – livestreamed on Facebook.

“We, two weeks ago, had a huge, thousand-strong march on Parliament of anti-vaxxers who have been radicalised on social media saying that they want to kill politicians and kill journalists.

“I feel like that’s material to this case.”

Photo credit: REUTERS/Mike Hutchings

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