5. Digital Platforms And Media - Commercial Relationships And Monetisation

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05 5. Digital platforms and media – commercial relationships and monetisation

Key findings Digital platforms are the gateways to online news media for many consumers and provide news referral services for media businesses via media aggregation services, online search services and social media services. Google Search and Facebook are important channels through which consumers access news. Many news businesses are dependent on Google and Facebook as key sources of referral traffic, and Google and Facebook are unavoidable trading partners for a significant number of media businesses. Google’s supply of search services and Facebook’s supply of social media services influences their incentives and how they approach their role in referring audience to news media websites. There is a fundamental bargaining power imbalance between media businesses and Google and Facebook that results in media businesses accepting terms of service that are less favourable. Media businesses accept terms that are less favourable to them, in order to appear in Google Search results. Due to an imbalance of bargaining power with Google, they cannot negotiate to optimise the length and content of snippets (described in section 5.3.2) to maximise the number of users clicking through to their websites without diminishing the value of their content. The Accelerated Mobile Page (AMP) format impedes the ability of media businesses to monetise content as effectively as on their own websites. It also creates difficulties with attribution, branding and the sharing of data. Media businesses’ uptake of Facebook’s Instant Articles has been minimal. However, media businesses face broader monetisation issues on Facebook beyond Instant Articles. The rapid increase in consumers’ use of Apple News in Australia may result in Apple becoming a ‘must have’ platform for Australian media businesses. Some media businesses have had difficulties in monetising content on Apple News and in combining their business models with the use of Apple’s app store. Digital platforms are regulated by Australian copyright law in a broadly similar way as media businesses performing comparable roles. However, the uncertainties in the operation of authorisation liability under the copyright regime creates challenges for rightsholders seeking to enforce their copyright protections against secondary publishers such as digital platforms. Digital platforms use a variety of notice-and-takedown processes for rightsholders to request the removal of copyright-infringing content, which do not always provide for the timely take-down of Australian copyright-protected content. Rightsholders can face particular challenges in enforcing copyright against digital platforms because of uncertainties regarding authorisation liability. The challenges are exacerbated by the cost and delay associated with bringing court proceedings against overseas-based digital platforms hosting content outside Australia. The challenges in enforcing copyright against digital platforms create detriments for rightsholders because they lower the incentives for digital platforms to respond promptly to take-down requests and erode the value of their copyrighted content. This chapter sets out the ACCC’s findings and is structured as follows: Section 5.1 discusses the concept of news referral services and describes each type of news referral service offered in Australia and the key platforms on which Australian consumers access news. Section 5.2 discusses the roles of each of Google and Facebook in the news referral services market, analyses the role of Apple News in the same market, and describes the business models and incentives of these platforms in the supply of news referral services. Section 5.3 discusses stakeholder concerns with the implications of each of Google’s and Facebook’s substantial bargaining power in the supply of news referral services and provides the ACCC’s views about the balance of bargaining power between each of Google and Facebook and news media businesses. The section sets out the ACCC’s recommendation for designated digital platforms to implement their own code of conduct, to govern their commercial relationships with media businesses. 206 Digital Platforms Inquiry Final Report

Section 5.4 considers how digital platforms are regulated under Australian copyright law. Section 5.5 discusses particular challenges faced by rightsholders in enforcing copyright against digital platforms. This section sets out the ACCC’s recommendation to clarify complexities in Australian copyright law and recommends that the ACMA develop a take-down code applicable to content distributed on digital platforms. 5.1 What are news referral services? Key findings Digital platforms are the gateways to online news media for many consumers and provide news referral services for media businesses. In Australia, the key platforms on which consumers access news are Google Search and Facebook. Consumer use of Apple News is growing quickly. News referral services can take the form of media aggregation services, online search services or social media services. These are explained below. 5.1.1 Media aggregation services A digital platform that supplies a media aggregation service collects and presents news content from across the internet. Most providers of media aggregation services have desktop and mobile options available to assist with accessibility and improve readability for users. Media aggregation providers in Australia include Google News, Apple News, YouTube News, News360 and Flipboard. Media businesses may also be considered media aggregation services, although the news content is limited to news content produced by the relevant media business. For consumers who prefer a variety of news sources, media business’ websites and apps are unlikely to be an effective substitute. The News and Media Research Centre of the University of Canberra reports in its Digital News Report 2019 that the majority of surveyed consumers who access news online (62 per cent) access online news via indirect methods, such as social media, news aggregators, email newsletters and mobile alerts. 12 per cent of consumers that access news online have used a news aggregator in the past week to access news, an increase of 3 per cent since 2016.667 Google News Google News is Google’s news aggregation service, offered as a website (on desktop and mobile) and as an app. Google News aggregates news from thousands of media businesses on the Internet and presents a continuous flow of headlines from news articles, grouped by story. Stories on Google News are in categories, such as ‘For you’ (recommended by Google based on a user’s interests), ‘Australia’ (if the user is based in Australia), ‘Business’, ‘Technology’ and others. Users are also able to search for news on Google News. Google also offers a news tab in Google Search, which aggregates news content relevant to the search term entered by a user. Only a very small percentage of Google Search users in Australia access the news tab.668 667 C Fisher, S Park, JY Lee, G Fuller, Y Sang, Digital news report: Australia 2019, June 2019, p. 28. 668 Information provided to the ACCC. Digital Platforms Inquiry Final Report 207

An example of a mobile app version of Google News is provided below. Figure 5.1 Source: Example of Google News’ media aggregation service Google News app, accessed 22 November 2018. A number of submissions to the Inquiry discuss Google News. However, only a small number of consumers in Australia use this service compared to Apple News. Recent Nielsen survey data estimates the unique monthly audience of Apple News as 5.5 million users, compared to 1.5 million users for Google News.669 Australian consumers are, however, frequent users of Google Search. This is discussed below. Given the small number of consumers that access news via Google News relative to the number of consumers that access news via Google Search, Google News will not be a key focus of this chapter. Apple News Apple News aggregates and personalises news content for users, using both editorial and algorithmic elements to determine what and how news content is presented to consumers. In Australia, Apple has paid agreements with approximately 50 Australian publishers who supply content for Apple News.670 According to recent survey data by Nielsen, Apple News is the most popular news aggregator in Australia, with approximately 5.5 million monthly active users as at February 2019.671 The use of Apple News is growing rapidly in Australia. Based on the Nielsen data mentioned above, the annual growth in unique audience numbers from February 2018 to February 2019 for Apple News was more than 25 per cent. As discussed in chapter 1, the growth in users of Apple News is likely due to the fact that users of Apple iPhones receive and use Apple News as part of the iPhone offering, with Apple News pre-installed on all iOS devices. In this respect, the ACCC notes that Apple has a large share of the Australian markets for operating systems, with approximately 57 per cent of the mobile operating system market672; 90 per cent of the tablet operating system market673 and 25 per cent of the desktop operating system market674, in March 2019. 208 669 Nielsen Audience Data, February 2019. 670 Information provided to the ACCC. 671 Nielsen Audience Data, February 2019. 672 Statcounter, Mobile Vendor Market Share Australia, accessed 9 April 2019. 673 Statcounter, Operating System Market Share Australia, accessed 9 April 2019. 674 Statcounter, Desktop Operating System Market Share Australia, accessed 9 April 2019. Digital Platforms Inquiry Final Report

This suggests that although Apple News is limited to Apple devices, any activities in relation to or about Apple News may have wide-ranging effects, given the widespread use of Apple devices in Australia. An example of Apple News on a mobile device is provided below. Figure 5.2: Example of Apple News’ media aggregation service Source: 5.1.2 Apple News app, accessed 22 November 2018. Online search services A key method for consumers to access news online is through online search services. Consumers use online search services to access news content by entering keywords relevant to the news story, or the brand or name of their chosen news supplier, into a search engine. The search engine then provides hyperlinks and frequently, snippets of the relevant news content and/or relevant images, using its algorithm to rank the results. As noted above, search services have become an increasingly popular method for consumers to access news content. As set out in chapter 2, Google Search has a dominant position in the provision of search services in Australia, with a 95 per cent market share.675 The products and services search engines supply that are specific to news referral services are set out below. Google Search When a user types a search term in Google Search, Google produces a set of hyperlinks that its algorithm considers to be relevant to the given search term. These are known as organic search results. When a user types a search term in Google Search that Google considers to have a ‘news intent’ (that is, relevant to a current news item), Google Search may also present the user with a ‘Top Stories’ carousel on its search engine results page, in addition to the organic search results. Top Stories is a type of specialised result (known as Universal Search results) designed to respond to user queries with news intent and consists of a group of news results that Google crawls and places in a separate index. 676 675 Statcounter, Search engine market share, accessed 30 April 2019. 676 Information provided to the ACCC Digital Platforms Inquiry Final Report 209

Google’s Top Stories carousel is a container that includes articles, live blogs and videos on breaking news stories and displays sets of related results horizontally with images. Top Stories can contain news articles from different publishers, or from one news publisher. News publishers have the option of using structured data to mark-up content on their web pages, which makes the web page eligible for inclusion in Google’s Top Stories carousel. An example of a Top Stories carousel on a desktop is set out below: Figure 5.3: Example of Google’s Top Stories carousel on a desktop device Source: Google Search, Results for ‘Sydney dust storm’, accessed 22 November 2018. Google employs specialised algorithms to rank news results within Top Stories, determine whether to display Top Stories within Google's results page, and where to place it when it is displayed. The stronger the user intent for news and the higher the quality of the results, the higher on the page Top Stories will be displayed. Conversely, if the user intent is not clear or the quality of the results is not as high, then Top Stories will appear lower on the page or not at all.677 On mobile devices, Google’s Top Stories carousel only displays news stories published in the AMP format, which provides consumers with the ability to instantly swipe between full pages of content.678 AMP is an open-source publishing technology that allows mobile pages to be loaded more quickly on the user device by uploading them onto the Google cache. It has been reported that AMP pages ‘typically load four times faster and use ten times less data than non-AMP pages’.679 An example of a Top Stories carousel on a mobile device is provided below. The lightning bolt next to the media business’ name highlighted by the purple circle symbol indicates stories are in the AMP format. 677 210 Information provided to the ACCC. 678 Google, Mark Up Your Content Items, last updated 29 April 2019, accessed 10 May 2019. 679 C Crivallaro, Accelerated Mobile Pages (AMP): Why They Are Important to Your Website, Rawfish, 20 July 2017, accessed 12 November 2018. Digital Platforms Inquiry Final Report

Figure 5.4: Example of Google’s Top Stories carousel on a mobile device Source: Google Search, Results for ‘Sydney dust storm’, accessed 22 November 2018. AMP was made available in Google Search on mobile devices in early 2016.680 Further detail about AMP pages and AMP Stories (a related service) is set out in section 5.3.4. When searching for news stories on Google Search, stories from traditional Australian print news businesses appear prominently in the search results. 680 C Newton, Google’s answer to Facebook Instant Articles is now available on the mobile web, The Verge, 24 February 2016, accessed 10 May 2019. Digital Platforms Inquiry Final Report 211

Box 5.1 Sources of news presented in news searches on Google Search From 15 to 26 October 2018, the ACCC ran searches on three separate phrases on Google Search: ‘Banking Royal Commission’, ‘AFL’ and ‘Scott Morrison’ and recorded the media businesses that appeared on Google’s Top Stories carousel and the first page of the organic search results.681 While this is not representative of all news searches, it provides an insight into the types of news sources that are surfaced to Australian users using Google Search. Appendix D shows the results of this experiment. There were a broad range of media businesses represented in the Top Stories carousel and organic search results for the three search terms examined, although some media businesses were featured much more frequently than others. Overall, the ABC, The Sydney Morning Herald, The Guardian and The Australian Financial Review were consistently featured in the Top Stories carousel and the first page of organic search results, for search terms unrelated to sport. For the sport-related search term, Fox Sports featured heavily on the Top Stories carousel and organic search results. In this respect, it is clear that the search term influences the frequency with which media businesses are featured on the Top Stories carousel or organic search results. For instance, The Australian Financial Review was featured more frequently in organic search results for the ‘Banking Royal Commission’ search term, compared to ‘Scott Morrison’. The spread with which The Guardian, News.com.au, The Australian and The Sydney Morning Herald (a mix of News Corp, Nine (Fairfax) and other independent publications) were featured in the Top Stories carousel in response to the ‘Scott Morrison’ search term was relatively even, compared to the ‘Banking Royal Commission’ search term, where the ABC appeared more than half the time. These examples suggest that the Google Search results reflect the content focus, and presumably the likely relevance, of each news media business’ content. Google also provides a news tab on Google Search, which groups news articles relevant to the search query. An example of Google’s news tab is set out on the next page. 681 212 The searches were conducted in Sydney, using the ‘Guest’ window function of Google Chrome. Digital Platforms Inquiry Final Report

Figure 5.5: Example of Google Search’s news tab Source: Google Search, Results for ‘Sydney dust storm’, accessed 22 November 2018. Search services offered by Bing and DuckDuckGo Bing and DuckDuckGo both offer news tabs in their search engines, which provides news content relevant to a search query. On its news tab, Bing provides users with the ability to select news categories, sort news items in terms of ‘best match’ (in relation to the search query) or ‘most recent’, and filter news based on sources. In the organic search results, Bing provides a product similar to Google’s Top Stories carousel, highlighting news content relevant to the search query in boxes separate to the organic search results. Examples of Bing’s search results and news tab are set out below. Digital Platforms Inquiry Final Report 213

Figure 5.6: Examples of Bing’s organic search results and highlighted news items featured in Bing’s organic search results Source: Bing, Results for ‘Sydney dust storm’, accessed 22 November 2018. Figure 5.7: Example of Bing’s news tab Source: Bing, Results for ‘Sydney dust storm’, accessed 22 November 2018. DuckDuckGo offers a news tab in its search service that, like Google and Bing, provides hyperlinks to news content relevant to a search query. DuckDuckGo provides users with the option to select ‘Australia’ as the user’s location for both organic search results and its news tab. DuckDuckGo highlights particular news stories in its organic search results. Examples of both DuckDuckGo’s organic search results page and news tab, using the same search term as above for Bing, and DuckDuckGo’s highlighted news stories for the search term ‘Sydney dust storm news’, are set out below. 214 Digital Platforms Inquiry Final Report

Figure 5.8: Examples of DuckDuckGo’s organic search results and news tab Source: DuckDuckGo, Results for ‘Sydney dust storm’, accessed 22 November 2018. Figure 5.9: Example of DuckDuckGo’s highlighted news stories in organic search results Source: DuckDuckGo, Results for ‘Sydney dust storm’, accessed 22 November 2018. Digital Platforms Inquiry Final Report 215

5.1.3 Social media services Consumers also access news stories via social media platforms. As noted above, the Digital News Report 2019 reported that 46 per cent of respondents indicated that one of the ways in which they access news is through social media.682 Of the respondents surveyed, 36 per cent indicated that they had used Facebook to access news at least once in the past week and 19 per cent had used YouTube at least once for news in the last week. For respondents identified as Generation Z (with a birth year of 1997 and after), these figures rise to 47 per cent for Facebook and 36 per cent for YouTube.683 These figures are not mutually exclusive and consumers often use more than one platform or website to access news. Social media platforms supply hyperlinks to and/or snippets of news content, or an abbreviated or shortened form of news content made for the platform. For instance: News publishers are able to post news articles or links to news articles on Facebook, which then show up on the news feeds of users who have liked or subscribed to receive posts from the media business. Snapchat offers a product known as Snapchat Discover, through which news publishers can upload short clips of video news content to their followers on Snapchat. Any user, including news publishers and journalists, can post text, links, images, video, and news content using their Twitter accounts. Users can also create Twitter Moments, or curated stories comprised of Tweets, using the Twitter.com website.684 Social media services use algorithms to rank and present content, including hyperlinks to news content. For example: On Facebook, the make-up of a user’s news feed will depend, among other things, on a mixture of ‘signals’, being data points that Facebook uses to determine the relevance of a particular post to a particular user at that particular time.685 The ACCC understands that Facebook’s News Feed algorithms are focused on promoting ‘meaningful social interactions’ between users, and Facebook has indicated that this means users will see less public content, such as posts from media.686 On Twitter, a user will see posts from users they follow on their home timeline.687 The default setting for this timeline is ‘Show the best Tweets first’. Users will see Tweets from users they follow and Recommended Tweets (Tweets that Twitter believes the user will enjoy, based on their platform activity). If the ‘Show the best Tweets first’ setting is turned off, then users will see Tweets from users they follow in their home timeline view in reverse chronological order.688 On Snapchat, a user is able to ‘subscribe’ to Snapchat Discover channels; the stories on these channels are then published at the top of the user’s Discover feed. Snapchat also recommends Snapchat Discover channels for its users to follow, which includes stories with news media content. The ACCC understands that Snapchat uses a number of internal systems to process recommendations; one of these systems includes a system to rank specific content according to the likelihood that a certain user will like that content.689 216 682 C Fisher, S Park, JY Lee, G Fuller, Y Sang, Digital news report: Australia 2019, June 2019, p. 26. 683 C Fisher, S Park, JY Lee, G Fuller, Y Sang (2019), Digital news report: Australia 2019, June 2019, p. 95. 684 Information provided to the ACCC. 685 Information provided to the ACCC. 686 M. Zuckerberg, Post, Facebook, 11 January 2018, accessed 12 November 2018. 687 A home timeline is a stream of Tweets from accounts a user has chosen to follow on Twitter. 688 Information provided to the ACCC. 689 Information provided to the ACCC. Digital Platforms Inquiry Final Report

An example of each of these news feeds is provided below. Figure 5.10: Examples of news articles in Facebook’s News Feed, Twitter’s news timeline and Snapchat Discovery Source: 5.2 Facebook app, Twitter app, Snapchat app, accessed 22 November 2018. The role of digital platforms in the supply of news referral services Key findings Google Search and Facebook are important channels through which consumers access news. Many news businesses are dependent on Google and Facebook as key sources of referral traffic, and Google and Facebook are unavoidable trading partners for a significant number of media businesses. Google’s supply of search services and Facebook’s supply of social media services influences their incentives and how they approach their role in referring audience to news media websites. The rapid increase in consumers’ use of Apple News in Australia may result in Apple becoming a ‘must have’ platform for Australian media businesses. Some media businesses have had difficulties in monetising content on Apple News and in combining their business models with the use of Apple’s app store. Google and Facebook, in separate written submissions and during the ACCC’s stakeholder forum, have criticised the ACCC’s approach to the news referral services market in the Preliminary Report. Outside of market definition issues (discussed in chapter 2), Google and Facebook each stressed the need that the ACCC distinguish between the two platforms and their different business models. The ACCC recognises the different roles that Google and Facebook perform in the supply of such services. In this Report, the ACCC has sought to identify the implications of their different activities for news media referral services. This section contains the ACCC’s analysis of the business models of each of Google and Facebook, the incentives they face relative to those of media businesses and the effect of these business models and incentives on the supply of news referral services. Digital Platforms Inquiry Final Report 217

5.2.1 Google As discussed above, the primary way in which consumers access news using Google’s platforms is by searching for news content using Google Search, either by entering a search query in relation to a news topic (such as ‘federal budget 2019’) or the name of a media business (such as ‘Sydney Morning Herald’). Based on information before the ACCC, we understand that approximately 8 per cent to 14 per cent of Google Search queries from devices in Australia led to the appearance of Top Stories on the Google Search results page.690 This is a relatively significant proportion of search queries and may indicate the value to Google of surfacing news content in response to user queries. Google submits that its primary offering is the supply of search services for consumers: Google provides search results to users and advertising to advertisers; any resulting “referrals” to third-party sites are the (valuable) by-product of Google seeking to provide services to its users. News referral traffic is incidental to the provision of high quality search results to users.691 The ACCC recognises that the principal products of Google are its search services and advertising services. However, the supply of news-related search queries to consumers is a vital component of Google’s overall supply of search services. Accordingly, the supply of news referral services to media businesses is also an important aspect of Google’s business. For the most part, Google Search does not display ads against search results for news queries and does not supply ads in relation to news stories on its news tab. The ACCC considers Google’s ability to attract consumers to its platform relies on the provision of a high quality search service and the inclusion of hyperlinks to news content that is accurate, current and relevant to users’ search queries (as well as snippets of that content) is part of this service. Consumers that use Google Search to access news would likely be inclined to use Google Search for non-news related search queries. The ACCC notes that Google’s incentive to provide a high quality search service to consumers (which includes responses to news-related queries) naturally affects the incentives of Google in its supply of news referral services to media businesses. At times, Google’s interests can conflict with those of media businesses. This is most clearly seen in Google’s previous First Click Free (FCF) policy and its ongoing practice of offering snippets of news content to users in response to search results of news-related queries. The FCF policy and the issue of snippets are explored in further detail in section 5.3 5.2.2 Facebook Facebook’s primary consumer facing offering is its supply of social media services, providing users with a platform to upload their content and to connect with their friends and family. In contrast to Google Search, the principal objective of Facebook is to retain users on its platform. Only a small proportion of content on Facebook’s news feed is news content (estimated by Facebook to be four per cent692). The ACCC also notes that, as discussed in chapter 2, the proportion of referrals to print/online and online news media sites and apps, coming from Facebook decreased over the course of the 2017 calendar year. Data available to the ACCC suggests the proportion of referrals from Facebook stabilised after this period of time. Nevertheless, the ACCC remains of the view that Facebook is an essential gateway for news for many consumers. It may be a less important distribution channel for some media businesses, relative to Google Search, but evidence suggests that Facebook is still a vital means for some media businesses to reach consumers and build brand awareness. 218 690 Information provided to the ACCC. 691 Google, Submission to ACCC Digital Platforms Inquiry Preliminary Report, February 2019, p. 30. 692 M Zuckerberg, Post, Facebook, 20 January 2018, accessed 6 May 2019. Digital Platforms Inquiry Final Report

On the consumer side, there is survey evidence to suggest that Facebook remains an important source for news for consumers. The Digital News Report 2019 reports that in Australia, 46 per cent of consumers surveyed use social media for news and 18 per cent of consumers surveyed use social media as the main source of news. For those consumers who access news on social media, Facebook is reported as the most used social media for news (at 36 per cent of surveyed consumers).693 The ACCC notes that using Facebook for news has decreased by 9 per cent since 2016, but there have been increases in the use of YouTube, Snapchat and Instagram for news consumption.694 The survey also suggests there have been decreases in online engagement across sharing and liking activity. However, the ACCC considers that Facebook remains a vital channel for media businesses reaching consumers of certain demographic groups (for example, younger consumers or potentially consumers in regional areas). The Digital News Report 2019 states that younger Australians, Generation Z (born after 1997) and Ge

News referral services can take the form of media aggregation services, online search services or social media services. These are explained below. 5.1.1 Media aggregation services A digital platform that supplies a media aggregation service collects and presents news content from across the internet. Most providers of media aggregation .

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