Canada and Australia Comparison

Australian News Media Bargaining Code

Application

The Australian Code relies on a designation mechanism. The Minister designates digital platform corporations that have a significant bargaining power imbalance with news media, at the Minister’s discretion.

Exemption

Corporations not designated by the Minister are exempt from the code. Corporations may not be designated if they have made a significant contribution to the sustainability of the Australian news industry through commercial agreements that remunerate news businesses for news content, at the Minister’s discretion. If not designated, platforms are free from any regulatory oversight or information sharing requirements. This may be one reason that platforms appear to favour the Australian model.

Undue Preference provisions

Non-discrimination provisions prevent designated platforms from discriminating against news publishers.

Information Sharing

Designated platforms must provide advance notice of algorithm changes likely to affect news businesses as well as information about the data collected by platforms. Information is generally shared between parties; however, the Australian Competition & Consumer Commission (ACCC) has information-gathering powers for the purpose of enforcement and record keeping.

Other Transparency measures

The Australian Communications and Media Authority (ACMA) must publish details of each registration and endorsement on their website. A written report must be provided to the Minister and the Communications Minister. The Minister must ensure that copies of the report are available for public inspection.

Canadian Online News Act

Application

Governor-in-Council (GIC) regulations establish objective, quantitative criteria to determine which Digital News Intermediaries (DNIs) are captured under the Act. GIC regulations and their application by the CRTC ensure greater transparency and independence from political influence.

Exemption

The CRTC can consider exempting a DNI from parts of the Act if a DNI that is captured under the Act has applied for an exemption. The CRTC’s decision to exempt must be guided by s. 11 of the Act and the criteria set in GIC regulations. The public will have an opportunity to be heard, potentially through a public hearing or the gathering of written submissions. Once exempted, platforms remain subject to key elements of the regime, such as regulatory tools and information sharing provisions, to ensure the criteria for exemption are being met on an ongoing basis. The CRTC may also reassess its decision of an exemption as it deems necessary.

Undue Preference provisions

The CRTC will develop a code of conduct to ensure negotiations are performed in good faith and that both parties make informed business decisions. Undue preference provisions are intended to prevent platforms from giving an unreasonable preference or disadvantage to news businesses. Actions carried out in the normal course of business are not considered undue preference.

Information Sharing

The Act contains information-sharing provisions that compel DNIs to provide the CRTC with any information it requires to exercise its powers as specified under the Act. Similarly, the CRTC must provide information to the Minister or the GIC that is necessary for performing their duties under the Act.

Other Transparency measures

The Commission must publish a list of DNIs, a list of eligible news businesses, and reasons for making exemption orders on its website. The CRTC will be required to hire an independent auditor to prepare an annual report of aggregate data on the value of commercial agreements to provide the public with a measure of the impact of the legislation on the Canadian digital news marketplace. Other transparency measures include clear and objective criteria for application and exemption and transparency in bargaining through the code of conduct.