Broken News – establishing a fairer bargaining dynamic between the publishing industry and digital platforms
A thriving publishing industry is vital for cultural preservation, dissemination of knowledge, and the protection of a healthy political discourse. Yet despite playing such a fundamental role in modern democratic society, the publishing industry is facing a significant imbalance of power in its interactions with digital platforms when it comes to the use by platforms of publisher content.
This post will consider how the Digital Markets, Competition and Consumers Act 2024 (“DMCCA”) and wider regulatory activity can combine to provide a new frontier for publishers in their collective bargaining efforts with digital platforms.
Background
The way we access news is changing.
A 2024 study by Ofcom showed that nearly two-thirds (64%) of UK adults use online intermediaries to access news and that this behaviour is even more pronounced in younger generations, with over seven in ten (71%) of 16–24-year-olds now using social media to keep up with news. [1] Given its importance as a gateway to published content, fair access to digital platforms is an essential input for publishers to reach audiences, monetise content, and compete effectively in an evolving media landscape.
The increased influence of digital markets has affected the publishing industry in many different ways, both good and bad. Of greatest concern, however, is that publishers are often left at a disadvantage when it comes to negotiations around the use of their content, proper accreditation for the content, and remuneration.
DMCCA
One major legislative development that will impact the relationship between digital platforms and publishers is the new regulatory framework under the DMCCA, which aims to ensure fair access to digital ecosystems and curb anti-competitive practices within digital markets.
Under the DMCCA, the UK Competition and Markets Authority (“CMA”) can designate digital companies as having “strategic market status” (“SMS”) in one or more digital activities where they have:
i. substantial and entrenched market power;
ii. are in a position of strategic significance; and
iii. meet certain minimum turnover requirements.
Once a firm has been investigated and designated as having SMS in respect of a digital activity (then an “SMS firm”), the CMA has different tools available to guide how the firm should conduct its digital activity and to prevent, mitigate, or remedy any issues from adversely impacting competition. These tools include both conduct requirements, and pro-competitive interventions.
The remedial tools available under the new regime came into force on 1 January 2025 and are designed to address competition concerns in digital markets on a forward-looking basis, in a flexible and efficient process, tailored to the specific sector and players.
The DMCCA and its remedial toolkit is relevant to publishers in three main ways:
1. Fair bargaining mechanisms for content – the DMCCA aims to ensure fair terms for use of publisher content. These could include both non-payment terms (for example, the way content is presented and attributed, and publishers’ access to data on how their content is used) and payment terms. Any breach of conduct requirements imposed on SMS firms in relation to payment terms with publishers can then be resolved by the CMA through its ‘Final Offer’ mechanism. This is intended to offer fair and reasonable payment terms to affected third parties and involves the SMS firm and one or more counter-parties to the disputed transaction submitting final offers on payment terms to the CMA, with the CMA then determining which final offer will be implemented. [2]
2. Greater control over use of content – the DMCCA is intended to give publishers greater clarity and control over use of their content, by increasing transparency over onward use of content (such as in the generation of AI offerings) and ensuring fair and accurate attribution of credit for the creative work.
3. Prevention of leveraging – the DMCCA enables the CMA to address any attempts by SMS firms to leverage their strong position in one digital activity (e.g. social media or search) into another (e.g. AI). This promotes a more level playing field amongst Big Tech firms and seeks to ensure that smaller firms are able to compete. That, in turn, may result in greater choice for publishers and a consequently stronger bargaining position in relation to content.
CMA investigation
Within a month of the new regime taking effect, the CMA launched an SMS investigation into Google’s general search activities. As part of that investigation, the CMA will explore whether Google exploits consumer data and publisher content.
On 24 June 2025, the CMA published its roadmap for possible interventions in respect of Google’s general search services. The roadmap sets out how the CMA intends to prioritise its work on potential conduct requirements and pro-competition interventions, should Google be designated as having strategic market status. Of particular note for publishers:
• the CMA has included publisher controls as a ‘Category 1’ measure slated for early prioritisation. [3] Publisher controls are aimed at ensuring that publishers have effective transparency, attribution and choice in how their content collected by Google for search is used in AI-generated responses, without affecting if and how they appear in Google Search; and
• the CMA has also included publisher concerns about the impact of Google’s bargaining position as a future ‘Category 2’ measure. [4] Publisher concerns in this regard relate to whether publishers are receiving fair and reasonable terms (including payment terms) for the use of their content.
Wider regulatory activity
In addition to the nascent DMCCA investigations, there has also been increased pressure on the government to take action on copyright reform in light of AI developments.
In 2022, the CMA and Ofcom jointly published an advice in relation to digital platforms and fair bargaining for the use of content. This ultimately fed into the DMCCA and the adoption of the Final Offer Mechanism as above.
More recently, in December 2024, the Government launched a consultation focused on resolving the ongoing tension between copyright and AI. This consultation closed at the end of February 2025, and we are eagerly anticipating the outcomes. In parallel, the Data (Use and Access) Act 2025 received Royal Assent on 19 June 2025. Whilst tabled amendments that would have enhanced copyright protections in the face of AI did not make it into the Bill, the Bill does require the Secretary of State to “prepare and publish a report on the use of copyright works in the development of AI systems” within 9 months of the Act being passed. [5] This therefore obligates the Government to make progress on its consideration of AI and copyright reform in short order.
Comment
The accelerated growth of digital platforms and the consequent shift in the power balance between those platforms and publishers runs the very real risk of exploiting content-providers. This may render their crucial work unsustainable and ultimately push important voices out of the market.
However, positive collaboration between media and Big Tech is in all parties’ interests: Big Tech successfully attract users to their platforms, publishers are fairly remunerated for their creative content, and we, as the consuming public, benefit from plentiful access to as wide a variety as possible of opinions and information. The advent of regulatory activity in this space can hopefully provide a positive opportunity for publishers in their negotiations with Big Tech, leading to growth and technological developments being embraced in a fair and balanced manner.
Footnotes
[1] Understanding the influence of social media as gateways to news – published 25 March 2024.
[2] Digital Markets Guidance, paragraph 7.119.
[3] Category 1 measures reflect the CMA’s most immediate concerns. The CMA intends to consult on these issues in the autumn of 2025 so as to deliver some of the quickest benefits for UK businesses and consumers.
[4] Category 2 measures cover issues for which there may be a case for action, but which require further consideration, and potential interventions may be more complex to develop. The CMA has stated that it will continue its evidence gathering, stakeholder engagement and analysis to consider the best and most proportionate approach.
[5] Data (Use and Access) Act 2025 – see s.136.