Australian Media Reform Report

Bird & Bird's media experts in Australia provide an essential guide to the huge amount of legal reform currently underway in the media sector . What reforms are currently in progress? What stage have they reached? And what are the next steps?

In these unprecedented times, 2020 has already been a year of unprecedented change in the Australian media law landscape.  Keeping track of the breadth of proposed reform is a challenging task.

The below tables (media content regulation, relationship between digital platforms and traditional news media, and digital platforms regulation) provide a concise summary of the current status of each reform process in each category, and set out each process’ expected next steps.

Media content regulation

Reform ProcessDescriptionCurrent status Next steps
1.     Review of Model Defamation Provisions (Stage 1)The Defamation Working Party (DWP), established by the Council of Attorneys-General (CAG), is reviewing defamation law in Australia to identify areas for national reform and formulate new Model Defamation Provisions (MDPs).Awaiting agreement of Council of Attorneys-General to changes to final MDPs.Jurisdictions to enact changes to model law from June 2020 onwards.
2.    Review of Model Defamation Provisions (Stage 2)During the course of 2019 it became apparent to DWP that the issues raised by stakeholders in response to questions concerning the liability in defamation of digital platforms were technical and complex, and warranted separate consideration outside the broader reform timetable.  In addition, during 2019, the ACCC published its Digital Platforms Inquiry Report, making important findings about the operation of digital platforms relevant to defamation and online platforms.

 

CAG has agreed that the DWP will undertake a separate ‘Stage 2’ review process to consider potential amendments to the MDPs that address the responsibilities and liability of digital platforms for defamatory content published online. This will include consideration of the issues raised by the ACCC in the Digital Platforms Inquiry Report and the Commonwealth Government’s response, following which recommendations will be made to CAG.  It is anticipated this will occur during the course of 2020.

3.    Open Justice Review (NSW)NSW Law Reform Commission was asked by the Attorney General to review the operation of suppression and non-publication orders and access to information in NSW courts and tribunals.Awaiting publication of consultation paper following preliminary submissions.Consultation papers to be produced.
4.    Review of Australia’s Classification RegulationThe Department of Infrastructure, Transport, Regional Development and Communications is reviewing Australia’s classification regulation, seeking to develop a classification framework that meets community needs and reflects today’s digital environment.Undergoing review by Minister for Communications, Cyber Safety and the Arts.  A report was due to be presented to the Minister on 31 May 2020.CAG process to be commenced should there be agreement between all Commonwealth, state and territory classification ministers that the code and/or guidelines should be amended.
5.    Code for dealing with disinformation and news qualityIn its Digital Platforms Inquiry Report, the ACCC recommended that the ACMA should monitor the voluntary initiatives of digital platforms to allow users to identify the reliability, trustworthiness and source of news content featured on their services. The ACCC also recommended that digital platforms with more than one million monthly active users in Australia should implement an industry code of conduct, which is registered with and enforced by ACMA, to govern the handling of complaints about disinformation in relation to news and journalism or content presented as news and journalism.Awaiting development of voluntary codes.Government is to ask digital platforms to work with the ACMA to develop voluntary codes.

The ACMA is to report to the Government on the efficacy of the voluntary code in 2021.

6.    Framework for news and media literacyIn response to the ACCC’s Digital Platforms Inquiry Report, the Government committed to developing a proposal to establish a network of experts and organisations to develop media literary materials around a common framework prioritising students, older adults and other vulnerable people.Awaiting proposal.

 

Relationship between traditional news media and digital platforms

Reform ProcessDescriptionCurrent status Next steps
7.    Harmonised media regulatory frameworkIn response to the ACCC’s Digital Platforms Inquiry report, the Government committed to implementing a harmonised media regulatory framework.Options paper co-authored by Screen Australia and the ACMA released.  Accepting submissions until 3 July 2020.Phase 2 of process to reform media content regulation to begin.  First tranche of legislation to be proposed.
8.    Mandatory News Media Bargaining CodeThe ACCC is developing a mandatory code of conduct to govern the relationship between Australian news media businesses and digital platforms.The ACCC is reviewing written submissions made in response to the concepts paper.  These were due on 5 June 2020.Draft mandatory code to be released before the end of July 2020.  Final code to be settled in late 2020.
9.    Digital advertising services inquiry (Ad Tech Inquiry)The ACCC was directed by the Australian government to conduct an inquiry into the markets for the supply of digital advertising technology services and digital advertising agency services.The ACCC is considering the submissions made on the issues paper.  These were due on 21 April 2020.Interim report to be provided to the Treasurer by 31 December 2020.  Final report to be provided to the Treasurer by 31 August 2021.

 

Regulation of digital platforms and the on-line environment

Reform ProcessDescriptionCurrent status Next steps
10. Digital platform services inquiry 2020-2025The ACCC was directed by the Australian Government to conduct an inquiry into markets for the supply of digital platform services, including: internet search engine services, social media services, online private messaging services, digital content aggregation platform services, media referral services and electronic marketplace services.Awaiting provision of the first interim report.First interim report to be provided to the Treasurer on 30 September 2020

Subsequent reports to be provided to the Treasurer every six months until 31 March 2025

11.  Social Media Privacy Reform and Review of Privacy ActIn response to the ACCC’s Digital Platforms Inquiry Report, the Government committed to strengthening protections in the Privacy Act, and undertaking broader reform of the Australian privacy regime.Consultation process on social media privacy reforms.Consultation process on social media privacy reforms to conclude.

More expansive review of privacy to be completed in 2021.

12. Review of copyright enforcement reformsIn response to the ACCC’s Digital Platforms Inquiry Report, the Government has committed to reviewing the 2018 copyright enforcement reforms, including evaluating opportunities for facilitating online copyright enforcement.Awaiting review of the copyright enforcement reforms.Review of copyright enforcement reforms in 2018 is to occur in late 2020.
13. Online Safety ActThe Department of Infrastructure, Transport, Regional Development and Communications is seeking feedback on proposals for a new Online Safety Act to improve Australia’s online safety regulatory framework.Undergoing review of submissions which were due on 19 February 2020.New Online Safety Act to be developed.
14. Report on Google’s rollout of options in Europe to allow consumers to choose their internet browser and search engine on Android devices.In response to the ACCC’s Digital Platforms Inquiry Report, the Government directed the ACCC to monitor and report back on Google’s rollout of options of choices in Europe to allow consumers to choose their default internet browser and search engine on Android devices.Awaiting report.Report to be completed in 2021.
15. Amendments to merger lawIn its Digital Platforms Inquiry Report, the ACCC recommended that s 50(3) of the Competition and Consumer Act 2010 be amended.Awaiting public consultation.Public consultation.
16. Consumer protections for unfair contract terms and unfair trading practicesIn March 2019, the Government committed to strengthening unfair contact term protections for small business.Consideration of submissions to the Enhancements to Unfair Contract Term Protections consultation.  These were due on 27 March 2020.Decision to be made on consumer protections for unfair contract terms and unfair trading practices over 2020.
17. Pilot for handling digital platform conflictsIn response to the ACCC’s Digital Platforms Inquiry Report, the Government has committed to developing a pilot external dispute resolution scheme.Telecommunications Industry Ombudsman and Department of Communications and the Arts, regulators, industry and consumer stakeholders are working to develop and run a Digital Platforms Ombudsman pilot.Consideration of the need for a broader external dispute resolution process, including a Digital Platforms Ombudsman in 2021.

 

The Bird & Bird team keenly awaits future developments in each of these processes, and will provide further updates as they arise.

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