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Jono Davis's avatar

Thanks Dylan for writing something which at least attempts to outline Facebook’s side of the story here - which is a contrast to most major news organisations, especially Australian ones, which stand to benefit hugely should this code enter into law in its current form.

There was one thing you did get wrong in this post though, which is that Facebook does take excerpts from links that it’s users post. Here’s an example https://imgur.com/uR83C1m . (thankfully webworm or substack won’t have to pay imgur an unknown amount for me linking this image). The user didn’t upload this image, the headline, and an excerpt from the article. Facebook did scrape it. This is what the news organisations, and the Australian government think is losing them money. They think most people don’t click the link, they just read the scraped information and move on with their life - only having looked at Facebook’s ads - not the news organisation’s - and therefore Facebook is wholly profiting off the content it has “stolen” from news organisations. This is a fair argument. However as you correctly pointed out, the law includes only having the link to the content as a way it “makes news content available”. Which is where the law gets ridiculous and Facebook rightly disagrees.

This is just problem number one in this proposed law. It also starts opening some more uncomfortable areas where Facebook is now responsible for the content it’s users post. For example - if webworm were australian and makes more than $150,000 per year, it could be eligible to become a registered news organisation under this law. So if I now wanted to share a link to one of these posts to my friends on Facebook, Facebook would have to pay webworm a flat amount for the ability for it’s users to post your links. It gets weirder when you consider if webworm itself had a Facebook page and posted it’s own links, Facebook would still have to pay webworm the flat amount.

Another point you didn’t address is why Facebook inadvertently removed posts on “necessary” pages such as health departments and local fire services. Facebook says this is because under the new law (and if they didn’t want to comply) they would have to remove everything which the law considers news. The definition of news under this law is here https://imgur.com/NMvewNQ and it is incredibly broad and vague. So Facebook has come up with some algorithm which removes all posts which contain news as defined by this law. They obviously made some mistakes here, and have all but admitted to this by reinstating government Facebook pages etc. that were initially wiped.

The law also leaves two major powers up to the Australian government. Who this law actually applies to can be decided wholly by the Treasurer of Australia under only these incredibly broad guidelines https://imgur.com/7RSqXDJ . It isn’t metric based or rules based. What happens when a new Treasurer comes along who has a dislike of Twitter, Reddit, Instagram, or Youtube whos users all partake in the same practice of linking content as Facebook’s and Google Search’s. The Australian Communications and Media Authority would also have the power of deciding who’s going to get paid by Facebook and who isn’t - quite a large step towards some state controlled media - and conveniently for the ACMA they have plenty of ground to reject news organisations from becoming registered. The news organisation has to pass four “tests” to become registered. https://imgur.com/a/b0ajosh . This also causes a huge imbalance in the law. For large news organisations - think News Corp who seem to conveniently be this law's number one fan - this isn’t too much of a hurdle. However it gives a disadvantage to smaller publications which might not strictly reach the standards set by this law. It will become a lot harder to compete when your competitors are getting huge lump sums from Facebook just for the ability for their content to be shared.

There is also another section of this law which gives registered news organisations an advantage. The law requires that platforms inform registered news organisations whenever they make a “significant” change to their discovery/ranking/curation algorithm 14 days in advance. The relevant section is here https://imgur.com/pna7SfA .The law applies to any "alterations to the ways in which a service distributes content". The law never actually defines what this means, but it gives a bunch of examples that go beyond ranking. For example, anything that affects a particular "class of content", such as deciding whether or not to make all videos auto-play, is an alteration. Basically, this law would prevent Facebook from deploying just about any non-trivial change to its product without first doing a detailed analysis of how it would affect the Australian news business, in order to determine whether a notification is required.

Lastly, Facebook and Google have a problem with how they would be forced into a commercial agreement with every registered news organisation that the ACMA lets in. The two parties are initially allowed to negotiate freely but if no agreement is reached the ACMA appoints an arbiter whose job is to take the two final offers from both the companies and decide which is more fair and then that final offer is legally binding - no negotiating of the final offer. This may seem extreme but the Australian government itself says this will be the case in 75% of the agreements.

Lastly, Facebook and Google aren’t making a fuss about all this just because they don’t want to pay news organisations. In fact, even without this law, both companies have entered into commercial agreements with news companies to pay for their content. Google has even been doing this in Australia already https://blog.google/products/news/google-news-showcase-launches-australia/ - and Facebook was ready to follow suit with Facebook News as they have already done in the US and UK https://www.cnbc.com/2021/01/26/facebook-starts-rolling-out-facebook-news-to-uk-users.html . Oh and if Facebook or Google are found in breach of this new law the penalty is in the order of hundreds of millions of dollars per infringement - slightly more than the usual slap on the wrist Facebook is used to.

Sorry this turned out to be so long.

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Henry Maddocks's avatar

Stop. Using. Facebook. My wife has been having a Facebook free February and she’s less anxious and getting a lot more done. As for publishers, get substack or Wordpress. Take control of your content.

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