News Publishers’ Association Seeks Authorisation And Provisional Authorisation To Engage In Collective Bargaining

News Publishers’ Association of New Zealand Incorporated seeks authorisation and provisional authorisation to engage in collective bargaining with Facebook and Google

The Commerce Commission has received applications from News Publishers’ Association of New Zealand Incorporated (NPA) seeking authorisation and provisional authorisation on behalf of itself, and its current and future members to collectively negotiate with each of Facebook and Google about the terms on which their news content appears on each platform. The NPA seeks authorisation for a period of 10 years.

NPA is an industry association whose membership consists of regional and national New Zealand news media companies. NPA advocates on behalf of the news media industry of New Zealand. NPA currently represents approximately ten news media companies.

Facebook provides online social media and social networking services. Google provides internet-related search services and products. Facebook and Google display news and journalistic content from New Zealand news media companies on their respective platforms.

NPA considers that any lessening of competition as a result of New Zealand news media companies collectively negotiating with Facebook and Google would be outweighed by the public benefits that are likely to arise. According to NPA, these benefits include likely reducing the costs of negotiating with the digital platforms, addressing significant bargaining imbalance with Facebook and Google, and various efficiency benefits. NPA also considers that outcomes achieved through these collective negotiations would assist in supporting the sustainability of New Zealand news media companies, and therefore contribute to greater media plurality and resources toward combatting disinformation and malinformation in New Zealand news and journalism.

A public version of NPA’s authorisation and provisional authorisation applications will be available on the Commission’s case register shortly.

The Commission seeks submissions from interested parties on the appropriateness of allowing NPA to give effect to the proposed collective negotiations while the Commission considers its application for authorisation.

Submissions can be sent by email to registrar@comcom.govt.nz with the reference “NPA Provisional Authorisation”. Any submissions should be received by 1 December 2021, with cross-submissions due by close of business on 8 December 2021.

The Commission will invite submissions from interested parties with respect to the substantive authorisation application at a future date.

Background
The Commission may grant authorisation under sections 58 or 65AA of the Commerce Act 1986 (the Act) for agreements that may otherwise breach the Act if it is satisfied that the agreement will in all the circumstances result, or be likely to result, in such a benefit to the public that the conduct should be permitted.

The Commission’s Authorisation Guidelines explain when anti-competitive agreements that may lessen competition will be authorised under section 58 of the Act, and our process for determining such authorisation applications.

The Commission may grant a provisional authorisation under section 65AD of the Act during the COVID-19 epidemic period in respect of an application for authorisation made under sections 65AA(2) or (3) or 58(1) or (2).

A provisional authorisation has the same effect as an authorisation but is of limited duration and only available while the Commission considers an application for authorisation of the relevant agreement. The Commission may authorise all or some of the agreement for which authorisation has been sought.

The Commission may grant provisional authorisation when it considers it appropriate. The Commission will consider the urgency of the application, potential benefits and detriments, and the impact on the relevant market amongst other factors when considering whether a provisional authorisation is appropriate.

The Commission’s Guidelines on Approach to Authorisations under the COVID-19 Response (Further Management Measures) Legislation Act explain:

• when the Commission may grant provisional authorisation, and our process for determining such provisional authorisation applications; and
• when the Commission will authorise agreements that contain a cartel provision under Part 5 of the Act, and our process for determining such authorisation applications.

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