Angela Flannery
Quay Law Partners, Sydney
angela@quaylaw.com

Introduction

In March 2021, Australia passed legislation implementing the News Media and Digital Platforms Mandatory Bargaining Code (the 'Code'), which requires digital platforms, if designated, to negotiate with Australian news media organisations to pay those organisations for the use of their news content. No designations have been made under the Code, as the platforms to whom the Code was directed, Google and Meta, voluntarily negotiated deals with several Australian organisations at the time the Code was enacted. The legislation was considered world leading at the time and was copied by other jurisdictions, such as Canada, which introduced its own version of the law.

Since then, the Australian government has introduced very little regulation that applies specifically to digital platforms and services, despite the Australian competition regulator, the Australian Competition and Consumer Commission (ACCC), urging the government to pass laws to deal with sector-specific market failures and other work being undertaken by the government, such as on the question of the regulation of artificial intelligence (AI). With the European Union implementing the Digital Markets Act and the Digital Services Act, as well as the AI Act, and jurisdictions closer to Australia also introducing sector-specific regulation, such as Japan, which has recently passed the Act on Promotion of Research and Development and Utilisation of AI-Related Technologies, Australia has been left behind in this area.

However, this may change over the course of 2025. For example, in late 2024, the government amended Australia’s online safety legislation to introduce a ban on children under 16 having accounts on restricted social media platforms. The platforms that will be required to comply with this highly controversial law have not yet been determined, but it is due to take effect from December 2025. In addition, in late 2024, the government commenced a consultation on two other proposed sector-specific regimes, which are discussed in this article, namely:

• a new digital competition regime; and
• a news bargaining incentive scheme.

A new digital competition regime

From the time that it undertook its groundbreaking digital platforms inquiry in 2017 to 2019, the ACCC has been urging the Australian government to implement sector-specific regulation for digital platforms in order to address competition concerns and to combat perceived consumer harms. In November 2022, in the fifth interim report issued as a result of the ACCC’s five-year digital platform services inquiry, the ACCC again recommended a sector-specific regime, a call it repeated in the final report from that inquiry released in June 2025.

As a result of these calls from the ACCC to act, the Australian government consulted on competition law reform proposals specifically targeted at digital markets from December 2024 to February 2025. Under that regime, which is based on the ACCC’s recommendations and draws on elements from both the EU’s Digital Markets Act and the UK’s Digital Markets, Competition and Consumers Act, the following proposals are put forward:

• the Australian treasurer would be empowered to designate large platforms that are significant for Australian consumers and that pose the greatest risk of competition harm;
• once designated, a platform would need to comply with principles-based rules incorporated in legislation, such as a prohibition on self-preferencing, tying restrictions and other similar activities; and
• service-specific codes would be developed for key digital services of concern, such as advertising tech services, which provide more granular obligations consistent with the principles-based rules in the legislation. Service-specific codes for advertising tech firms could include, for example, restrictions on platforms preferencing their own services over those of their competitors.

Australia’s proposed news bargaining incentive scheme

In December 2024, the Australian government announced that it would establish a news bargaining incentive scheme to ensure that ‘large digital platforms’ contribute to the sustainability of the provision of news in Australia. Although the scheme has not yet been enacted, the government has advised that it will apply from January 2025.

Under the scheme, large digital platforms are those who, together with related entities, generate Australian $250 million gross revenue per annum in Australia and operate significant social media or search services (irrespective of whether the services provide news content). Google, Meta and TikTok are intended to be caught by the definition.

The core components of the incentive scheme are a charge and offset mechanism. Specifically:

• for income tax years from 1 January 2025, a new charge will be payable by large digital platforms. The charge amount has not been set and the government has not definitively confirmed media organisations would directly receive the proceeds of any charges collected; and
• platforms will be able to offset their liability to pay the charge (in full or part) by paying news organisations and other contributors to the news media sector. The rate of the offset has not been determined yet, but would be at a rate greater than one for one, to incentivise commercial deals.

The news bargaining incentive scheme has been proposed to, in effect, replace Australia’s News Media and Digital Platforms Mandatory Bargaining Code which was legislated in 2021. While in 2021, Google and Meta entered into commercial arrangements with certain Australian media organisations to avoid designation under the Code, some of those commercial arrangements have been short lived. In March 2024, Meta announced that it would not renew any of the deals that it had entered into with Australian media organisations and that providing news content on its Australian social media platforms was not a priority. More recently, suggestions have been made that Google may also not be continuing with some of its arrangements.

The news bargaining incentive scheme can therefore be seen as the government’s response to the fact that the Code has not provided a means for long-term support of the Australian news media sector and reflects that, while the Code was the best approach at the time, it is no longer fit for purpose.

Will these reforms progress?

While the current Australian government has over time shown a commitment to the further regulation of digital platforms and services, it has moved slowly to implement reforms in these areas. Following the Australian election in May 2025, which saw the re-election of the Australian Labor Party that has been in power since 2022, there may however be new enthusiasm to move forwards with these reforms.