By: Ayush TP*

INTRODUCTION

In the era of the explosive growth of applications and services of the Internet, social media and AI technology, the Ministry of Electronics and Information Technology (“IT Ministry”) has proposed the Digital India Act, 2023 (“DIA”) to replace the ageing Information Technology Act, 2000. The government wants the Act to catalyse, enable and fairly regulate the one trillion-dollar digital economy that India is projected to become. The Act aims to regulate multiple types of digital intermediaries and to enable an open, trusted, accountable internet.

According to the IT Ministry, one of the goals of the open Internet is “fair trade practises through regulation of dominant Ad-Tech platforms”. An Ad-Tech platform offers software and tools agencies, brands and publishers use to target, deliver and measure digital advertising efforts. The most dominant, well-known ad Tech platforms are Google and Facebook. Google has direct ad-tech products, whereas Facebook is a social media platform that provides advertising solutions to businesses and advertisers. It is already the stand of India that dominant ad tech should pay print news publishers and their digital platforms a fair share of revenue, considering the status of the former as mere aggregators of content and the latter as creators of original content. Foreign jurisdictions have legislated on this matter – the most noteworthy being Australia and Canada. Australia has enacted the News Media Bargaining Code (“NMBC”) to try and ensure that news media businesses are fairly remunerated for using their content on digital platforms. Canada has enacted the Canadian Online News Act (“Canadian Act” or “ONA”), which came into effect very recently on 19 December 2023. Opinions have risen that India can emulate the Australian and Canadian laws to ensure fair monetisation to the news media outlets, who are the creators of reliable journalistic content and regulate the dominance of Ad-Tech platforms in dictating terms to them.

However, the Australian code has numerous shortcomings that hamper its effectiveness, making it unsuitable for adoption by India. The Canadian Act, in contrast, makes improvements over the NMBC and provides feasible and practical solutions to safeguard content creator’s rights. In light of increasing opinions recommending the adoption of the NMBC to the Indian context through the DIA, this article argues that adopting the Canadian Act is apt for India. The article explains why monetisation of print media content creators from Ad-Tech corporations is a significant problem to rectify through legislative enactments, the pitfalls of the Australian method, examines how the Canadians have improved over it, thereby making it the more worthy model to emulate, and concludes by giving concrete policy recommendations for the DIA to ensure the fair monetisation from Ad-Tech giants to print media and journalism in India.

THE IMPERATIVE FOR LEGISLATIVE ACTION TO SAVE PRINT MEDIA: HOW AD-TECH DOMINANCE IS UNDERMINING PUBLIC INTEREST REPORTING 

The rise of digital platforms and the shift in consumer behaviour to online content consumption has severely impacted the revenues of traditional print media. While consumers increasingly consume news and information digitally, the dominant Ad-Tech platforms control a disproportionate share of the digital advertising revenue. This leaves little room for print media organisations to benefit from the rapidly growing digital advertising market.

The core problem stems from the unilateral control and anti-competitive practices of Ad-Tech platforms in digital advertising. The traditional advertising subsidies that supported print media organisations have collapsed with the migration of media consumption to the Internet. Ad-Tech giants now exercise significant control over advertising revenues and audience access, making it difficult for independent print media organisations to monetise digital content. This anti-competitive concentration of power in the hands of a few Ad-Tech suppliers has reached concerning levels.

If this situation persists unchecked, news organisations will be forced to function more as data brokers for advertisers rather than credible sources of news and information. As argued by many, the increasing personalisation of communication based on user data collection will undermine the vital democratic functions of journalism. It threatens to replace editorial content with hyper-personalized stories aimed at channelling users into behavioural profiles for advertisers. This will severely compromise the role of print media as a pillar of democracy and public discourse.

The result is an impending extinction event for the print media industry that has supported public interest journalism and served as a cornerstone of democratic governance. Credible print journalism faces an existential crisis with economic sustainability challenges, declining revenues, and unfair competition from Ad-Tech giants. This demands urgent legislative intervention to ensure fair monetisation and rebalance the scales tilted heavily in favour of dominant Ad-Tech corporations.

Without measures to rectify the disproportionate power wielded by Ad-Tech giants, misinformation and fake news will flourish online while public interest journalism withers away. As evidenced in other jurisdictions like Australia and Canada, legislative action is imperative to mandate fair compensation for print media organisations from the Big Tech firms that effectively control content monetisation in the digital economy. India, too, must enact regulations that secure the future of print journalism by redistributing digital advertising revenues more equitably. This significant course correction is crucial to safeguard democracy by preserving independent, ethical journalism in the digital age.

ASSESSING THE LIMITATIONS OF THE AUSTRALOIAN APPROACH: WHY NMBC IS INSUFFICIENT

In analysing the impact of the NMBC, the Australian government claims that over thirty commercial agreements have been made between digital platforms and Australian news businesses. However, the terms of these agreements are confidential, and the treasury has been unable to affirm the sums paid to different media companies or the conditions of the arrangements.

It is inferred that the threat of being designated under the NMBC has forced Google and Meta to negotiate with media companies and reach voluntary deals to pay the latter. Substantial discretion is awarded to the Australian government for designating corporations under the NMBC, depending on their contribution to the sustainability of the news industry and commercial agreements they have entered into with the media platforms. Hence, no platforms have been designated under the code to date. Undesignated platforms are accessible from regulatory oversight or information-sharing requirements. As a result, the digital platforms like Google and Meta favour the Australian model.

Authors opine that the lack of designation is “due to the concession Facebook garnered largely through their instigation of the Australian news ban.” All the agreements that Ad-Tech giants have entered into are purely voluntary. Sources indicate that Meta has entered into three-year-long agreements while Google has entered into three to five-year agreements with media companies. Concerns are prevalent that there is no assurance of an extension beyond the current contractual durations for these agreements. Opinions suggest that if the need arises to designate the platforms, they may retaliate in a manner consistent with their previous actions (Facebook had pulled the news feed in Australia, and Google had threatened to cease operations in reaction to the enforcement of the NMBC). Conclusions can be drawn that the NMBC may be destined to serve as a mere suggestive measure, facing challenges in practical implementation and sanctions and encountering difficulties in regulating the dominance of Ad-Tech behemoths.

In addition, there are concerns about the status of more minor, independent news organisations under the Australian Code. Meta only made deals with a total of 13 Australian News Agencies, while Google made deals with 23. There are commercial confidence provisions in the legislation. News organisations and Ad-Tech platforms are not required to report how much money they received, how and where they invested the money received or whether the investment aligned with the NMBC’s policy of supporting public interest journalism.

CANADA’S REGULATORY EDGE OVER AUSTRALIA 

The ONA’s first edge over the NMBC is regarding what it classifies as news content. The ONA brings audio and audio-visual content under its ambit, thereby offering significant protection to journalistic outlets that publish content in various formats.

In addition, ONA applies automatically to what it classifies as digital news intermediaries that must statutorily negotiate with the news media outlets(“DNIs”) provided specific criteria are met, without the need to designate them by a government official like the NMBC requires. Further, the particulars of the DNIs must be maintained and published, thereby ensuring much-needed transparency in the process. Section 11 of the ONA clarifies that “designation of DNIs,” as the Australian Code requires, is the rule in Canada. Dedicated exemption orders are to exempt intermediaries from statutory bargaining with news outlets, meaning “non-designation” is an exemption. The Canadian Act thereby demands high degrees of transparency and accountability from intermediaries and regulatory bodies over the Australian Code.

The ONA clearly lays down the bargaining process that must ensue between DNIs and media outlets. It mandates a negotiation or bargaining process over a period of 90 days, mediation over 120 days and final offer arbitration proceedings over a minimum period of 45 days.

The Canadian law’s advantage over the Australian Code is clear – it includes audio and visual broadcasters in the digital space alongside the print media. In contrast, the Australian Code decides only to afford its protection to the written word. Designating intermediaries to enter into negotiations and monetisation agreements with news publishers mandatorily is the rule and not the exception. Further, elaborate guidelines over the Australian Act are provided to ensure prompt timelines for the proceedings. The ONA is a clear upgrade over the NMBC.

BETTER THAN THE PIONEER, STILL IMPERFECT 

An analysis and policy recommendation that India should emulate the Canadian ONA over the Australian NMBC would be incomplete without addressing criticisms or the imperfections found in the former. The primary concern raised against the Act is the unfettered power granted to the Canadian Radio-Television and Telecommunications Commission to decide who a journalist is and what an eligible news business is. The Act has been challenged as promoting internet fragmentation, i.e., the phenomenon in which the people in Canada could have a drastically different internet than those in other countries. Ad-Tech companies, which are significant stakeholders, vehemently argue against the Act based on payment and potential impact on the free flow of information. The actual legislative effectiveness and cost-to-benefit ratio analysis of the implementation of ONA in Canada are avenues for further research. There is a need for a comprehensive and in-depth analysis of the impact of the legislation on the Canadian digital economy. This article abstains from delving into those aspects – restricting its scope to one question – which legislation is better for India to emulate if it were to create a Digital India Act? One of the aims of the Act was to establish an open internet through regulating dominant Ad-Tech platforms.

KEY TAKEAWAYS AND CONCLUSION

In conclusion, this article has established that legislative intervention is imperative to ensure the fair monetisation of print media content creators from dominant Ad-Tech corporations in India. While Australia pioneered this regulatory attempt through the NMBC, the code contains several shortcomings that restrict its effectiveness and practical enforceability. Critically, the NMBC lacks transparency requirements, broader applicability beyond written content, and mandatory bargaining procedures.

Canada’s Online News Act displays tangible improvements that address the limitations of Australian legislation. The ONA brings audio-visual broadcasters into its ambit, institutes transparent designation procedures, and introduces clear statutory bargaining timelines. These enhancements rectify critical gaps in Australia’s model. Consequently, India has the opportunity to emulate a more evolved regulatory framework by drawing from Canada’s law.

However, India must be cautious of the ONA’s flaws as well. Concerns about regulatory overreach still need to be addressed in determining eligible news outlets and fragmentation of the internet. As such, India should strategically adapt facets of Canadian legislation while establishing adequate checks and balances. For instance, eligibility criteria could be made more inclusive and transparent. Bargaining timeframes could be regulated without compromising on privacy or internet openness. Overall, Canada’s Online News Act offers India a promising starting point to legislate fairness in the digital economy. However, prudent customisation is needed to ensure an optimal framework that balances the interests of all stakeholders – publishers, platforms, and the public- and to further the goals of a truly open internet.

*Ayush TP is a law undergraduate from National University for Advanced Legal Studies, Kochi. The author may be contacted via mail at ayushtp1757@nuals.ac.in.