The Centre-appointed 16-member inter-ministerial committee on digital competition law (CDCL) is set to recommend a draft digital competition Bill without any specific bargaining guidelines that could come in handy for digital news publishers in realising fair share of advertising revenues garnered by Big Tech from their platforms. 

Except for making a general recommendation that gatekeeper platforms should operate in a fair, reasonable and non-discriminatory (FRAND) manner with business users, the digital panel has not made any specific recommendation for enabling news publishers to bargain with digital giants, sources privy to the working of the panel said. 

The panel, which has now firmed up its recommendations, is expected to soon submit its report to Finance & Corporate Affairs Minister Nirmala Sitharaman, sources said. 

To get fair share

Digital news publishers have been fighting for their survival as Big Tech companies are monetising the content generated by news publishers by the way of advertising revenues, leaving publishers high and dry. Digital news publishers want to get a “fair share” of the digital advertising revenues earned by Big Tech platforms from the content being monetised by them. However, there is now complete information asymmetry and news publishers have no way to ascertain the advertising revenue earned by Big Tech through the usage of their news content, according to digital news publishers.

To address this information asymmetry, the Parliamentary Standing Committee on Finance headed by BJP MP Jayant Sinha had in its December 2022 report on “Anti-competitive Practices by Big Tech” recommended enactment of Digital Competition Act. The House Panel had in its report called for “regulatory provisions” to ensure that news publishers get a “fair share” of the digital advertising revenues earned by Big Tech platforms from the content being monetised by them.

Regulatory provisions are required to ensure that news publishers are able to establish contracts with Systemically Important Digital Intermediaries (SIDIs) through a fair and transparent process, the Standing Committee had recommended. In this context, it recommended that gatekeeper platforms should provide publishers with access to the performance measuring tools of the gatekeeper and the data necessary for publishers to carry out their own independent verification of the advertisements inventory, including aggregated and non-aggregated data.

On the lines of Australian law

Now, it appears that the CDCL has remained silent on the draft Digital Competition Bill, formed up by it, on this front. There is also a thinking that government may in coming days may look at enacting a separate law for digital news publishers (besides a Digital Competition Law) on the lines of Australia’s the New Media and Digital Platforms Mandatory Bargaining Code. The Corporate Affairs Ministry (MCA) had, on February 6, constituted a 10-member inter-ministerial committee to examine the need for a separate law on competition in digital markets. The digital panel has been among other things tasked to prepare a draft Digital Competition Act and submit report in three months.

The Committee on Digital Competition Act’s terms of reference include a review as to whether existing provisions of the Competition Act 2002 and the rules and regulations framed thereunder are sufficient to deal with the challenges that have emerged from the digital economy and to examine the need for an ex-ante regulatory mechanism for digital markets through separate legislation.