Google has threatened to close its search engine in Australia — as it dials up its lobbying against draft legislation that is intended to force it to pay news publishers for reuse of their content.
Facebook would also be subject to the law. And Facebook has previously said it would ban news from being shared on its products owing if the law was brought in, as well as claiming it’s reduced its investment in the country as a result of the legislative threat.
“The principle of unrestricted linking between websites is fundamental to Search. Coupled with the unmanageable financial and operational risk if this version of the Code were to become law it would give us no real choice but to stop making Google Search available in Australia,” Google warned today.
Last August the tech giant took another pot-shot at the proposal, warning that the quality of its products in the country could suffer and might stop being free if the government proceeded with a push to make the tech giants share ad revenue with media businesses.
Since last summer Google appears to have changed lobbying tack — apparently giving up its attempt to derail the law entirely in favor of trying to reshape it to minimize the financial impact.
Its latest bit of lobbying is focused on trying to eject the most harmful elements (as it sees it) of the draft legislation — while also pushing its News Showcase program, which it hastily spun up last year, as an alternative model for payments to publishers that it would prefer becomes the vehicle for remittances under the Code.
The draft legislation for Australia’s digital news Code which is currently before the parliament includes a controversial requirement that tech giants Google and Facebook pay publishers for linking to their content — not merely for displaying snippets of text.
Yet Google has warned Australia that making it pay for “links and snippets” would break how the internet works.
In a statement to the Senate Economics Committee today, its VP for Australia and New Zealand, Mel Silva, said: “This provision in the Code would set an untenable precedent for our business, and the digital economy. It’s not compatible with how search engines work, or how the internet works, and this is not just Google’s view — it has been cited in many of the submissions received by this Inquiry.
“The principle of unrestricted linking between websites is fundamental to Search. Coupled with the unmanageable financial and operational risk if this version of the Code were to become law it would give us no real choice but to stop making Google Search available in Australia.”
Google is certainly not alone in crying foul over a proposal to require payments for links.
Sir Tim Berners-Lee, inventor of the world wide web, has warned that the draft legislation “risks breaching a fundamental principle of the web by requiring payment for linking between certain content online”, among other alarmed submissions to the committee.
In written testimony he goes on:
Before search engines were effective on the web, following links from one page to another was the only way of finding material. Search engines make that process far more effective, but they can only do so by using the link structure of the web as their principal input. So links are fundamental to the web.
As I understand it, the proposed code seeks to require selected digital platforms to have to negotiate and possibly pay to make links to news content from a particular group of news providers.
Requiring a charge for a link on the web blocks an important aspect of the value of web content. To my knowledge, there is no current example of legally requiring payments for links to other content. The ability to link freely — meaning without limitations regarding the content of the linked site and without monetary fees — is fundamental to how the web operates, how it has flourished till present, and how it will continue to grow in decades to come.
However, it’s notable that Berners-Lee’s submission does not mention snippets. Not once. It’s all about links.
Meanwhile, Google has just reached an agreement with publishers in France — which they say covers payment for snippets of content.
In the EU, the tech giant is subject to an already reformed copyright directive that extended a neighbouring right for news content to cover reuse of snippets of text. Although the directive does not cover links or “very short extracts”.
In France, Google says it’s only paying for content “beyond links and very short extracts”. But it hasn’t said anything about snippets in that context.
French publishers argue the EU law clearly does cover the not-so-short text snippets that Google typically shows in its News aggregator — pointing out that the directive states the exception should not be interpreted in a way that impacts the effectiveness of neighboring rights. So Google looks like it would have a big French fight on its hands if it tried to deny payments for snippets.
But there’s still everything to play for in Australia. Hence, down under, Google is trying to conflate what are really two separate and distinct issues (payment for links versus payment for snippets) — in the hopes of reducing the financial impact versus what’s already baked into EU law. (Although it’s only been actively enforced in France so far, which is ahead of other EU countries in transposing the directive into national law.)
In Australia, Google is also heavily pushing for the Code to “designate News Showcase” (aka the program it launched once the legal writing was on the wall about paying publishers) — lobbying for that to be the vehicle whereby it can reach “commercial agreements to pay Australian news publishers for value”.
Of course, a commercial negotiation process is preferable (and familiar) to the tech giant versus being bound by the Code’s proposed “final offer arbitration model” — which Google attacks as having “biased criteria”, and claims subjects it to “unmanageable financial and operational risk”.
“If this is replaced with standard commercial arbitration based on comparable deals, this would incentivise good faith negotiations and ensure we’re held accountable by robust dispute resolution,” Silva also argues.
A third provision the tech giant is really keen gets removed from the current draft requires it to give publishers notification ahead of changes to its algorithms which could affect how their content is discovered.
“The algorithm notification provision could be adjusted to require only reasonable notice about significant actionable changes to Google’s algorithm, to make sure publishers are able to respond to changes that affect them,” it suggests on that.
It’s certainly interesting to consider how, over a few years, Google’s position has moved from “we’ll never pay for news” — pre- any relevant legislation — to “please let us pay for licensing news through our proprietary licensing program” once the EU had passed a directive now being very actively enforced in France (with the help of competition law) and also with Australia moving toward inking a similar law.
Turns out legislation can be a real tech giant mind-changer.
Of course the idea of making anyone pay to link to content online is obviously a terrible idea — and should be dropped.
But if that bit of the draft is a negotiating tactic by Australian lawmakers to get Google to accept that it will have to pay publishers something then it appears to be a winning one.
And while Google’s threat to close down its search engine might sound “full on”, as Silva suggests, when you consider how many alternative search engines exist, it’s hardly the threat it once was.
Especially as plenty of alternative search engines are a lot less abusive toward users’ privacy.
Natasha Lomas
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