Commerce Commission Issues Draft Determination On News Publishers’ Association’s Collective Bargaining Application

The Commerce Commission (Commission) has reached a preliminary view that it should allow the News Publishers’ Association of New Zealand (NPA) 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, for a 10 year period.

The Commission has reached the preliminary view that the collective bargaining should be permitted as it considers the potential benefits of collective bargaining are likely to outweigh any possible harms.

The benefits of collective bargaining include enabling participating news media companies to pool their resources and reduce the transaction costs of negotiations. Collective negotiation may also put smaller media companies in a better position to negotiate with Google and Meta than might otherwise be the case, which may lead to improved production of news content.

A copy of the Commission’s draft determination will be available on our case register soon.

The Commission seeks submissions from interested parties in relation to its draft determination. Submissions can be sent by email to registrar@comcom.govt.nz with the reference “NPA draft determination”. Any submissions by interested parties should be received by 5pm on 29 August 2022, with cross-submissions due by 5pm on 5 September 2022.

Background
On 11 April 2022, the Commission provisionally authorised NPA and participating news media companies to collectively negotiate with each of 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 final view on whether the conduct should be authorised.

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 ten news media companies, nine of whom have indicated an intention to participate in the proposed collective bargaining. A number of non-NPA members have also indicated an intention to participate in the proposed collective bargaining.

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

The Commission may grant authorisation under section 65AA of the Commerce Act 1986 (the Act) for cartel provisions 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 Guidelines on Approach to Authorisations under the COVID-19 Response (Further Management Measures) Legislation Act explain when the Commission will authorise agreements that might contain a cartel provision under section 65AA of the Act, and our process for determining such authorisation applications. The Commission may grant authorisation under section 58 of 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 a benefit to the public which would outweigh the lessening in competition that would result, or would be likely to result from it.

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.

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