Fair Digital News Bargaining Bill | Manatū Taonga | Ministry for Culture & Heritage

About the Bill

The Bill will enable New Zealand news publishers to negotiate on more equal terms with digital platforms. The intent is that news publishers are fairly compensated for the value of their news content that is made available by digital platforms online. The Bill ensures that the negotiations between news publishers and digital platforms are fair and provides a bargaining code and negotiation process for when deals cannot be reached voluntarily.

News publishers are companies that produce news content and are subject to a standards code, and/or to oversight by the Broadcasting Standards Authority or New Zealand Media Council. The Bill covers any news publisher based in New Zealand.

Digital platforms include search engines, social media platforms and other content hosts. The Bill covers any digital platform that is available in New Zealand and makes New Zealand news content available. However, companies must also meet a bargaining power imbalance test to be designated under the scheme.

Cabinet agreed to develop legislation in November 2022. The Bill was introduced to the House on 17 August 2023 and received its First Reading on 30 August 2023.

Consultation

Manatū Taonga undertook targeted consultation during the development of the Bill with a range of stakeholders, including news publishers, digital platforms, academics, mediation and arbitration experts, and international government agencies and regulators.

The Economic Development, Science and Innovation Committee called for public submissions on the Bill. Public submissions on the Bill closed on 1 November 2023.

Fair Digital News Bargaining Bill (NZ Legislation)

Government decisions

In November 2022, Cabinet agreed to develop legislation to support news publishers to maximise the benefits they receive from their content posted online. Cabinet agreed that this legislation would:

create a bargaining code to guide negotiations and ensure discussions are held in good faith;
create a stepped bargaining process for news publishers and digital platforms, ending with final offer arbitration. This process would be used when voluntary agreements cannot be reached;
create an exemption to the stepped bargaining process for digital platforms. When digital platforms can show they make a fair contribution to the sustainable production of New Zealand news content they can apply for an exemption to the scheme;
empower an independent regulator to oversee the Bill’s frameworks;
enable news publishers to collectively bargain without requiring a Commerce Commission determination; and
impose penalties for not complying with the legislation.

On 3 August 2023, Cabinet agreed to progress with the legislation (called the Fair Digital News Bargaining Bill) for introduction into the House of Representatives. If passed, the Bill will come into effect on 1 July 2024.

Keyword: Supporting commercial bargaining for online news (DEV–22–MIN–0288)

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Supporting commercial bargaining for online news (DEV–22–MIN–0288)

Next steps and timing

As the Bill progresses through Parliament, you can keep updated on its current stages and learn more about the process on Parliament’s website.

Fair Digital News Bargaining Bill (NZ Parliament)

The table below outlines the key stages and indicative timings of the Bill’s progression:

Phase	Timing
Approval to develop Bill	November 2022
Introduction of the Bill to the House	30 August 2023
Public submissions close on the Bill	1 November 2023
Bill commencement (except mandatory bargaining provisions)	1 July 2024
Mandatory bargaining provisions commencement	December 2024

Why the government is introducing the Bill

News publications in Aotearoa are now predominantly online and operating in a market controlled by global companies with unprecedented market power.

Digital platforms such as search engines and social media sites make money through advertising, but do not pay news creators for the use of their content.

While digital platforms report increasing revenues both in Aotearoa and overseas, the New Zealand news industry is struggling. Between 2011 and 2020, newspaper advertising revenue fell from $533 million to $210 million and led to a halving of the number of journalists in New Zealand.

Without the new revenue stream provided by this proposed legislation, there is a real risk New Zealand will lose vital sources of high-quality local and community news, and trusted public interest journalism.

What the Bill will mean for New Zealand news

Under the Bill, New Zealand news publishers will be able to require digital platforms to come to the bargaining table and discuss the value of their news content to the platform. Negotiated commercial arrangements will provide a new revenue stream for news publishers to maintain ongoing financial sustainability. This will help support a free and independent media in Aotearoa.

The Bill will also enable New Zealand news publishers to collectively bargain without requiring authorisation from the Commerce Commission. Collective bargaining will allow news publishers to pool their resources and improve their bargaining position when negotiating with digital platforms.

Commercial negotiation requirement for digital platforms and news publishers

The Bill requires commercial negotiations between digital platforms and news publishers to take place, but does not prescribe the outcome of the discussions.

Digital platforms that can show they do not make money from New Zealand news will not have to enter commercial arrangements.

The Bill does not automatically require digital platforms to compensate news publishers or create a ‘link tax’ as has been referenced in Canada.

The Bill ensures that commercial negotiations are taking place under a bargaining code and provides a framework for when a deal cannot be reached voluntarily.

Effect of Bill on Google and Meta

The Bill will require digital platforms to engage in bargaining with news companies if they are making news content available and there is a bargaining power imbalance in favour of the digital platform

As Google and Meta are currently the digital platforms that dominate the market, it is likely they will be registered for bargaining under the Bill unless they apply for and obtain an exemption.

Exemptions from the Bill

There is a high bar for a digital platform to obtain an exemption.

To be eligible for an exemption, a digital platform must show that it is making a fair contribution to the New Zealand news media industry.

Digital platforms can meet this requirement in a variety of ways but must be able to show that they are providing fair compensation for news content, for a diverse range of news publishers (including Māori news publishers). They also must be able to demonstrate that the agreed deals do not undermine journalistic independence or freedom of expression.

BSA Independent regulator

The Broadcasting Standards Authority will be appointed as the independent regulator in charge of the Bill’s bargaining processes.

The Broadcasting Standards Authority has strong relationships and experience working with the news publishers, which are important to oversee news bargaining. Other countries that have introduced similar legislation have also placed their media authorities in charge of the bargaining process.