Provisional Authorisation Granted For News Publishers’ Association To Engage In Collective Bargaining With Meta & Google

The Commerce Commission has provisionally authorised the News Publishers’ Association of New Zealand to collectively negotiate with Meta and Google regarding the terms and conditions on which participating news media companies’ content is displayed on digital platforms operated by Meta and Google.

The provisional authorisation allows the authorised parties to commence collective bargaining while the Commission continues to consider their authorisation application and reach a concluded view on whether the conduct should be authorised. The Commission’s decision to grant provisional authorisation should not be taken as an indication that it is likely to grant or decline the application for authorisation.

The Commission has assessed the evidence available at this time, and it considers that it is appropriate to grant provisional authorisation, taking into account the factors set out in our guidelines. In particular, the Commission recognises the likely benefits associated with the collective negotiation in this case, and that there is value in realising those benefits sooner rather than later.

The likely benefits of collective negotiation include the potential for participating news media companies to pool their resources and reduce the transaction costs of negotiation. Collective negotiation may also put smaller media companies in a better position to negotiate with Google and Meta than might otherwise be the case. The Commission also considers that allowing this provisional arrangement is unlikely to materially alter the market in a permanent way.

Further information about the application is available on the Commission’s case register. A copy of the Commission’s provisional authorisation decision will be available shortly. It continues to consider final determination of the application for authorisation and will not comment further at this time.

Background
Provisional Authorisation requirements

The Commission may grant a provisional authorisation under section 65AD of the Commerce 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 or arrangement. The Commission may authorise all or some of the agreement or arrangement 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.

Under the Commerce Amendment Act 2022, the Commission will obtain powers to grant interim authorisation for an application under section 58 if the Commission considers it is appropriate to do so. The Commission’s powers to grant interim authorisation come into effect on 5 May 2022.

A public version of the provisional authorisation application is available on the Commission’s case register.
 

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