Fair Competition and Freedom of Expression in the News Media
On 24 February 2025, South Africa’s Competition Commission released its provisional Media and Digital Platforms Market Inquiry (MDPMI) Report. The inquiry found that Google derives substantial value from South African digital news content, without compensating the publishers generating the content.
The recommendations follow Media24’s December 2024 decision to cease printing several major titles like City Press, Rapport, Beeld and Daily Sun, signifying a shift toward digital platforms in South Africa’s media sector.
To address the imbalance between Google and South African publishers, the Report recommends that Google pay between R300 million and R500 million annually to qualifying South African news publishers. However, this compensation would only be available to media outlets that meet specific requirements – including being regulated by either the Press Council or the Broadcast Complaints Commission (BCCSA). This means independent or non-aligned media outlets wouldn’t qualify.
The Report’s proposals raise several concerns including potential anti-competitive effects in the media market, and possible impacts on press freedom and freedom of expression.
A further concern is that, if implemented, the recommendations could make compensated publishers dependent on this funding, potentially distorting their operational independence.
Restrictive Vertical Practices
Section 5(1) of the Competition Act 89 of 1998 prohibits vertical agreements that substantially lessen competition unless offset by specific benefits. A vertical relationship exists between parties at different supply chain levels.
The Report’s recommendation risks violating section 5(1) by creating a restrictive practice that excludes media outlets not regulated by the Press Council or BCCSA. This exclusion could disadvantage unregulated outlets, potentially limiting fair competition, distort the market by incentivizing outlets to join these bodies for financial gain rather than merit, create barriers for smaller or independent outlets, stifling growth and reinforce the dominance of Press Council/BCCSA-aligned outlets, reducing market diversity.
The Constitution
Section 16 of the Constitution of the Republic of South Africa, 1996 guarantees freedom of expression, including media freedom, and protects the press from both direct and indirect interference.
A policy that financially disadvantages certain media outlets could constitute indirect interference, potentially undermining media diversity. Outlets not regulated by the Press Council or BCCSA may face disproportionate financial pressures, restricting their ability to operate and limiting viewpoint diversity. Linking compensation to association with particular regulators may undermine editorial independence, creating potential conflicts with section 16.
Way Forward
The proposed compensation model could fundamentally shape South Africa’s digital news landscape as the media market transitions from print to digital. The recommendations could determine whether publishers throughout the market remain viable and whether media diversity is upheld.
The Report describes itself as preliminary, indicating its recommendations remain open to feedback and revision. However, if implemented in their current form, the proposals risk creating anti-competitive effects and potentially undermining press freedom and media diversity by excluding outlets not regulated by the Press Council or BCCSA.
The ultimate outcome will depend on how stakeholders respond during the revision process and whether substantive changes are made before the Report is finalised, as well as whether Google will comply with the Reports directives.
