Going Dark

Abstract

The first two months of 2021 saw Google and Facebook ‘go dark’ in terms of news content on the Australia versions of their platforms. In January, Google ran a so-called “experiment” which removed or demoted current news in the search results available to a segment of Australian users. While Google was only darkened for some, in February news on Facebook went completely dark, with the company banning all news content and news sharing for users within Australian. Both of these instances of going dark occurred because of the imminent threat these platforms faced from the News Media Bargaining Code legislation that was due to be finalised by the Australian parliament. This article examines how both Google and Facebook responded to the draft Code, focussing on their threats to go dark, and the extent to which those threats were carried out. After exploring the context which produced the threats of going dark, this article looks at their impact, and how the Code was reshaped in light of those threats before it was finally legislated in early March 2021. Most importantly, this article outlines why Google and Facebook were prepared to go dark in Australia, and whether they succeeded in trying to prevent Australia setting the precedent of national governments dictating the terms by which digital platforms should pay for news content. From the Digital Platforms Inquiry to the Draft Code In July 2019, the Australian Treasurer released the Digital Platforms Inquiry Final Report which had been prepared by the Australian Competition and Consumer Commission (ACCC). It outlined a range of areas where Australian law, policies and practices were not keeping pace with the realities of a digital world of search giants, social networks, and streaming media. Analysis of the submissions made as part of the Digital Platforms Inquiry found that the final report was “primarily framed around the concerns of media companies, particularly News Corp Australia, about the impact of platform companies’ market dominance of content distribution and advertising share, leading to unequal economic bargaining relationships and the gradual disappearance of journalism jobs and news media publishers” (Flew et al. 13). As such, one of the most provocative recommendations made was the establishment of a new code that would “address the imbalance in the bargaining relationship between leading digital platforms and news media businesses” (Australian Competition and Consumer Commission, Digital Platforms Inquiry 16). The ACCC suggested such a code would assist Australian news organisations of any size in negotiating with Facebook, Google and others for some form of payment for news content. The report was released at a time when there was a greatly increased global appetite for regulating digital platforms. Thus the battle over the Code was watched across the world as legislation that had the potential to open the door for similar laws in other countries (Flew and Wilding). Initially the report suggested that the digital giants should be asked to develop their own codes of conduct for negotiating with news organisations. These codes would have then been enforced within Australia if suitably robust. However, after months of the big digital platforms failing to produce meaningful codes of their own, the Australian government decided to commission their own rules in this arena. The ACCC thus prepared the draft legislation that was tabled in July 2020 as the Australian News Media Bargaining Code. According to the ACCC the Code, in essence, tried to create a level playing field where Australian news companies could force Google and Facebook to negotiate a ‘fair’ payment for linking to, or showing previews of, their news content. Of course, many commentators, and the platforms themselves, retorted that they already bring significant value to news companies by referring readers to news websites. While there were earlier examples of Google and Facebook paying for news, these were largely framed as philanthropy: benevolent digital giants supporting journalism for the good of democracy. News companies and the ACCC argued this approach completely ignored the fact that Google and Facebook commanded more than 80% of the online advertising market in Australia at that time (Meade, “Google, Facebook and YouTube”). Nor did the digital giants acknowledge their disruptive power given the bulk of that advertising revenue used to flow to news companies. Some of the key features of this draft of the Code included (Australian Competition and Consumer Commission, “News Media Bargaining Code”): Facebook and Google would be the (only) companies initially ‘designated’ by the Code (i.e. specific companies that must abide by the Code), with Instagram included as part of Facebook. The Code applied to all Australian news organisations, and specifically mentioned how small, regional, and rural news media would now be able to meaningfully bargain with digital platforms. Platforms would have 11 weeks after first being contacted by a news organisation to reach a mutually negotiated agreement. Failure to reach agreements would result in arbitration (using a style of arbitration called final party arbitration which has both parties present a final offer or position, with an Australian arbiter simply choosing between the two offers in most cases). Platforms were required to give 28 days notice of any change to their algorithms that would impact on the ways Australian news was ranked and appeared on their platform. Penalties for not following the Code could be ten million dollars, or 10% of the platform’s annual turnover in Australia (whichever was greater). Unsurprisingly, Facebook, Google and a number of other platforms and companies reacted very negatively to the draft Code, with their formal submissions arguing: that the algorithm change notifications would give certain news companies an unfair advantage while disrupting the platforms’ core business; that charging for linking would break the underlying free nature of the internet; that the Code overstated the importance and reach of news on each platform; and many other objections were presented, including strong rejections of the proposed model of arbitration which, they argued, completely favoured news companies without providing any real or reasonable limit on how much news organisations could ask to be paid (Google; Facebook). Google extended their argument by making a second submission in the form of a report with the title ‘The Financial Woes of News Publishers in Australia’ (Shapiro et al.) that argued Australian journalism and news was financially unsustainable long before digital platforms came along. However, in stark contrast the Digital News Report: Australia 2020 found that Google and Facebook were where many Australians found their news; in 2020, 52% of Australians accessed news on social media (up from 46% the year before), with 39% of Australians getting news from Facebook, and that number jumping to 49% when specifically focusing on news seeking during the first COVID-19 pandemic peak in April 2021 (Park et al.). The same report highlighted that 43% of people distrust news found on social media (with a further 29% neutral, and only 28% of people explicitly trusting news found via social media). Moreover, 64% of Australians were concerned about misinformation online, and of all the platforms mentioned in the survey, respondents were most concerned about Facebook as a source of misinformation, with 36% explicitly indicating this was the place they were most concerned about encountering ‘fake news’. In this context Facebook and Google battled the Code by launching a public relations campaigns, appealing directly to Australian consumers. Google Drives a Bus Across Australia Google’s initial response to the draft Code was a substantial public relations campaign which saw the technology company advocating against the Code but not necessarily the ideas behind it. Google instead posited their own alternative way of paying for journalism in Australia. On the main Google search landing page, the usually very white surrounds of the search bar included the text “Supporting Australian journalism: a constructive path forward” which linked to a Google page outlining their version of a ‘Fair Code’. Popup windows appeared across many of Google’s services and apps, noting Google “are willing to pay to support journalism”, with a button labelled ‘Hear our proposal’. Figure 1: Popup notification on Google Australia directing users to Google’s ‘A Fair Code’ proposal rebutting the draft Code. (Screen capture by author, 29 January 2021) Google’s popups and landing page links were visible for more than six months as the Code was debated. In September 2020, a Google blog post about the Code was accompanied by a YouTube video campaign featuring Australia comedian Greta Lee Jackson (Google Australia, Google Explains Arbitration). Jackson used the analogy of Google as a bus driver, who is forced to pay restaurants for delivering customers to them, and then pay part of the running costs of restaurants, too. The video reinforced Google’s argument that the draft Code was asking digital platforms to pay potentially enormous costs for news content without acknowledging the value of Google bringing readers to the news sites. However, the video opened with the line that “proposed laws can be confusing, so I'll use an analogy to break it down”, setting a tone that would seem patronising to many people. Moreover, the video, and Google’s main argument, completely ignored the personal data Google receives every time a user searches for, or clicks on, a news story via Google Search or any other Google service. If Google’s analogy was accurate, then the bus driver would be going through every passenger’s bag while they were on the bus, taking copies of all their documents from drivers licenses to loyalty cards, keeping a record of every time they use the bus, and then using this information to get advertisers to pay for a tailored advertisement on the back of the seat in front of every passenger, every time they rode the bus. Notably, by the end of March 2021, the video had only received 10,399 views, which suggests relatively few people actually clicked on it to watch. In early January 2021, at the height of the debate about the Code, Google ran what they called “an experiment” which saw around 1% of Australian users suddenly only receive “older or less relevant content” when searching for news (Barnet, “Google’s ‘Experiment’”). While ostensibly about testing options for when the Code became law, the unannounced experiment also served as a warning shot. Google very effectively reminded users and politicians about their important role in determining which news Australian users find, and what might happen if Google darkened what they returned as news results. On 21 January 2021, Mel Silva, the Managing Director and public face of Google in Australia and New Zealand gave public testimony about the company’s position before a Senate inquiry. Silva confirmed that Google were indeed considering removing Google Search in Australia altogether if the draft Code was not amended to address their key concerns (Silva, “Supporting Australian Journalism: A Constructive Path Forward An Update on the News Media Bargaining Code”). Google’s seemingly sudden escalation in their threat to go dark led to articles such as a New York Times piece entitled ‘An Australia with No Google? The Bitter Fight behind a Drastic Threat’ (Cave). Google also greatly amplified their appeal to the Australian public, with a video featuring Mel Silva appearing frequently on all Google sites in Australia to argue their position (Google Australia, An Update). By the end of March 2021, Silva’s video had been watched more than 2.2 million times on YouTube. Silva’s testimony, video and related posts from Google all characterised the Code as: breaking “how Google search works in Australia”; creating a world where links online are paid for and thus both breaking Google and “undermin[ing] how the web works”; and saw Google offer their News Showcase as a viable alternative that, in Google’s view, was “a fair one” (Silva, “Supporting Australian Journalism”). Google emphasised submissions about the Code which backed their position, including World Wide Web inventor Tim Berners-Lee who agreed that the idea of charging for links could have a more wide-reaching impact, challenging the idea of a free web (Leaver). Google also continued to release their News Showcase product in other parts of the world. They emphasised that there were existing arrangements for Showcase in Australia, but the current regulatory uncertainty meant it was paused in Australia until the debates about the Code were resolved. In the interim, news media across Australia, and the globe, were filled with stories speculating what an Australia would look like if Google went completely dark (e.g. Cave; Smyth). Even Microsoft weighed in to supporting the Code and offer their search engine Bing as a viable alternative to fill the void if Google really did go dark (Meade, “Microsoft’s Bing”). In mid-February, the draft Code was tabled in Australian parliament. Many politicians jumped at the chance to sing the Code’s praises and lament the power that Google and Facebook have across various spheres of Australian life. Yet as these speeches were happening, the Australian Treasurer Josh Frydenberg was holding weekend meetings with executives from Google and Facebook, trying to smooth the path toward the Code (Massola). In these meetings, a number of amendments were agreed to, including the Code more clearly taking in to account any existing deals already on the table before it became law. In these meetings the Treasurer made in clear to Google that if the deals done prior to the Code were big enough, he would consider not designating Google under the Code, which in effect would mean Google is not immediately subject to it (Samios and Visentin). With that concession in hand Google swiftly signed deals with over 50 Australian news publishers, including Seven West Media, Nine, News Corp, The Guardian, the ABC, and some smaller publishers such as Junkee Media (Taylor; Meade, “ABC Journalism”). While the specific details of these deals were not made public, the deals with Seven West Media and Nine were both reported to be worth around $30 million Australian dollars (Dudley-Nicholson). In reacting to Google's deals Frydenberg described them as “generous deals, these are fair deals, these are good deals for the Australian media businesses, deals that they are making off their own bat with the digital giants” (Snape, “‘These Are Good Deals’”). During the debates about the Code, Google had ultimately ensured that every Australian user was well aware that Google was, in their words, asking for a “fair” Code, and before the Code became law even the Treasurer was conceding that Google’s was offering a “fair deal” to Australian news companies. Facebook Goes Dark on News While Google never followed through on their threat to go completely dark, Facebook took a very different path, with a lot less warning. Facebook’s threat to remove all news from the platform for users in Australia was not made explicit in their formal submissions the draft of the Code. However, to be fair, Facebook’s Managing Director in Australia and New Zealand Will Easton did make a blog post at the end of August 2020 in which he clearly stated: “assuming this draft code becomes law, we will reluctantly stop allowing publishers and people in Australia from sharing local and international news on Facebook and Instagram” (Easton). During the negotiations in late 2020 Instagram was removed as an initial target of the Code (just as YouTube was not included as part of Google) along with a number of other concessions, but Facebook were not sated. Yet Easton’s post about removing news received very little attention after it was made, and certainly Facebook made no obvious attempt to inform their millions of Australian users that news might be completely blocked. Hence most Australians were shocked when that was exactly what Facebook did. Facebook’s power has, in many ways, always been exercised by what the platform’s algorithms display to users, what content is most visible and equally what content is made invisible (Bucher). The morning of Wednesday, 17 February 2021, Australian Facebook users awoke to find that all traditional news and journalism had been removed from the platform. Almost all pages associated with news organisations were similarly either disabled or wiped clean, and that any attempt to share links to news stories was met with a notification: “this post can’t be shared”. The Australian Prime Minister Scott Morrison reacted angrily, publicly lamenting Facebook’s choice to “unfriend Australia”, adding their actions were “as arrogant as they were disappointing”, vowing that Australia would “not be intimidated by big tech” (Snape, “Facebook Unrepentant”). Figure 2: Facebook notification appearing when Australians attempted to share news articles on the platform. (Screen capture by author, 20 February 2021) Facebook’s news ban in Australia was not limited to official news pages and news content. Instead, their ban initially included a range of pages and services such as the Australian Bureau of Meteorology, emergency services pages, health care pages, hospital pages, services providing vital information about the COVID-19 pandemic, and so forth. The breadth of the ban may have been purposeful, as one of Facebook’s biggest complaints was that the Code defined news too broadly (Facebook). Yet in the Australian context, where the country was wrestling with periodic lockdowns and the Coronavirus pandemic on one hand, and bushfires and floods on the other, the removal of these vital sources of information showed a complete lack of care or interest in Australian Facebook users. Beyond the immediate inconvenience of not being able to read or share news on Facebook, there were a range of other, immediate, consequences. As Barnet, amongst others, warned, a Facebook with all credible journalism banned would almost certainly open the floodgates to a tide of misinformation, with nothing left to fill the void; it made Facebook’s “public commitment to fighting misinformation look farcical” (Barnet, “Blocking Australian News”). Moreover, Bossio noted, “reputational damage from blocking important sites that serve Australia’s public interest overnight – and yet taking years to get on top of user privacy breaches and misinformation – undermines the legitimacy of the platform and its claimed civic intentions” (Bossio). If going dark and turning off news in Australia was supposed to win the sympathy of Australian Facebook users, then the plan largely backfired. Yet as with Google, the Australian Treasurer was meeting with Mark Zuckerberg and Facebook executives behind closed doors, which did eventually lead to changes before the Code was finally legislated (Massola). Facebook gained a number of concessions, including: a longer warning period before a Facebook could be designated by the Code; a longer period before news organisations would be able to expect negotiations to be concluded; an acknowledgement that existing deals would be taken in to account during negotiations; and, most importantly, a clarification that if Facebook was to once again block news this would both prevent them being subject to the Code and was not be something the platform could be punished for. Like Google, though, Facebook’s biggest gain was again the Treasurer making it clear that by making deals in advance on the Code becoming law, it was likely that Facebook would not be designated, and thus not subject to the Code at all (Samios and Visentin). After these concessions the news standoff ended and on 23 February the Australian Treasurer declared that after tense negotiations Facebook had “refriended Australia”; the company had “committed to entering into good-faith negotiations with Australian news media businesses and seeking to reach agreements to pay for content” (Visentin). Over the next month there were some concerns voiced about slow progress, but then major deals were announced between Facebook and News Corp Australia, and with Nine, with other deals following closely (Meade, “Rupert Murdoch”). Just over a week after the ban began, Facebook returned news to their platform in Australia. Facebook obviously felt they had won the battle, but Australia Facebook users were clearly cannon fodder, with their interests and wellbeing ignored. Who Won? The Immediate Aftermath of the Code After the showdowns with Google and Facebook, the final amendments to the Code were made and it was legislated as the News Media and Digital Platforms Mandatory Bargaining Code (Australian Treasury), going into effect on 2 March 2021. However, when it became legally binding, not one single company was ‘designated’, meaning that the Code did not immediately apply to anyone. Yet deals had been struck, money would flow to Australian news companies, and Facebook had returned news to its platform in Australia. At the outset, Google, Facebook, news companies in Australia and the Australian government all claimed to have won the battle over the Code. Having talked up their tough stance on big tech platforms when the Digital Platforms Inquiry landed in 2019, the Australian Government was under public pressure to deliver on that rhetoric. The debates and media coverage surrounding the Code involved a great deal of political posturing and gained much public attention. The Treasurer was delighted to see deals being struck that meant Facebook and Google would pay Australian news companies. He actively portrayed this as the government protecting Australia’s interest and democracy. The fact that the Code was leveraged as a threat does mean that the nuances of the Code are unlikely to be tested in a courtroom in the near future. Yet as a threat it was an effective one, and it does remain in the Treasurer’s toolkit, with the potential to be deployed in the future. While mostly outside the scope of this article, it should definitely be noted that the biggest winner in the Code debate was Rupert Murdoch, executive chairman of News Corp. They were the strongest advocates of regulation forcing the digital giants to pay for news in the first place, and had the most to gain and least to lose in the process. Most large news organisations in Australia have fared well, too, with new revenue flowing in from Google and Facebook. However, one of the most important facets of the Code was the inclusion of mechanisms to ensure that regional and small news publishers in Australia would be able to negotiate with Facebook and Google. While some might be able to band together and strike terms (and some already have) it is likely that many smaller news companies in Australia will miss out, since the deals being struck with the bigger news companies appear to be big enough to ensure they are not designated, and thus not subject to the Code (Purtill). A few weeks after the Code became law ACCC Chair Rod Sims stated that the “problem we’re addressing with the news media code is simply that we wanted to arrest the decline in money going to journalism” (Kohler). On that front the Code succeeded. However, there is no guarantee the deals will mean money will support actual journalists, rather than disappearing as extra corporate profits. Nor is there any onus on Facebook or Google to inform news organisations about changes to their algorithms that might impact on news rankings. Also, as many Australia news companies are now receiving payments from Google and Facebook, there is a danger the news media will become dependent on that revenue, which may make it harder for journalists to report on the big tech giants without some perceptions of a conflict of interest. In a diplomatic post about the Code, Google thanked everyone who had voiced concerns with the initial drafts of the legislation, thanked Australian users, and celebrated that their newly launched Google News Showcase had “two million views of content” with more than 70 news partners signed up within Australia (Silva, “An Update”). Given that News Showcase had already begun rolling out elsewhere in the world, it is likely Google were already aware they were going to have to contribute to the production of journalism across the globe. The cost of paying for news in Australia may well have fallen within the parameters Google had already decided were acceptable and inevitable before the debate about the Code even began (Purtill). In the aftermath of the Code becoming legislation, Google also posted a cutting critique of Microsoft, arguing they were “making self-serving claims and are even willing to break the way the open web works in an effort to undercut a rival” (Walker). In doing so, Google implicitly claimed that the concessions and changes to the Code they had managed to negotiate effectively positioned them as having championed the free and open web. At the end of February 2021, in a much more self-congratulatory post-mortem of the Code entitled “The Real Story of What Happened with News on Facebook in Australia”, Facebook reiterated their assertion that they bring significant value to news publishers and that the platform receives no real value in return, stating that in 2020 Facebook provided “approximately 5.1 billion free referrals to Australian publishers worth an estimated AU$407 million to the news industry” (Clegg). Deploying one last confused metaphor, Facebook argued the original draft of the Code was “like forcing car makers to fund radio stations because people might listen to them in the car — and letting the stations set the price.” Of course, there was no mention that following that metaphor, Facebook would have bugged the car and used that information to plaster the internal surfaces with personalised advertising. Facebook also touted the success of their Facebook News product in the UK, albeit without setting a date for the rollout of the product in Australia. While Facebook did concede that “the decision to stop the sharing of news in Australia appeared to come out of nowhere”, what the company failed to do was apologise to Australian Facebook users for the confusion and inconvenience they experienced. Nevertheless, on Facebook’s own terms, they certainly positioned themselves as having come out winners. Future research will need to determine whether Facebook’s actions damaged their reputation or encouraged significant numbers of Australians to leave the platform permanently, but in the wake of a number of high-profile scandals, including Cambridge Analytica (Vaidhyanathan), it is hard to see how Facebook’s actions would not have further undermined consumer trust in the company and their main platform (Park et al.). In fighting the Code, Google and Facebook were not just battling the Australian government, but also the implication that if they paid for news in Australia, they likely would also have to do so in other countries. The Code was thus seen as a dangerous precedent far more than just a mechanism to compel payment in Australia. Since both companies ensured they made deals prior to the Code becoming law, neither was initially ‘designated’, and thus neither were actually subject to the Code at the time of writing. The value of the Code has been as a threat and a means to force action from the digital giants. How effective it is as a piece of legislation remains to be seen in the future if, indeed, any company is ever designated. For other countries, the exact wording of the Code might not be as useful as a template, but its utility to force action has surely been noted. Like the inquiry which initiated it, the Code set “the largest digital platforms, Google and Facebook, up against the giants of traditional media, most notably Rupert Murdoch’s News Corporation” (Flew and Wilding 50). Yet in a relatively unusual turn of events, both sides of that battle claim to have won. At the same time, EU legislators watched the battle closely as they considered an “Australian-style code” of their own (Dillon). Moreover, in the month immediately following the Code being legislated, both the US and Canada were actively pursuing similar regulation (Baier) with Facebook already threatening to remove news and go dark for Canadian Facebook users (van Boom). For Facebook, and Google, the battle continues, but fighting the Code has meant the genie of paying for news content is well and truly out of the bottle.