The dominance of the leading digital platforms and their impact across Australia’s economy, media and society must be addressed with significant, holistic reform, according to the final report of the ACCC’s Digital Platforms Inquiry
The move was backed by the Australian Media and Communications Authority, which hailed the ACCC’s announcement of a “comprehensive review of the impact of digital platforms on Australian news media, advertisers and consumers.”
The report contains 23 recommendations, spanning competition law, consumer protection, media regulation and privacy law, reflecting the intersection of issues arising from the growth of digital platforms.
“Our recommendations are comprehensive and forward looking and deal with the many competition, consumer, privacy and news media issues we have identified throughout the course of this Inquiry,” ACCC Chair Rod Sims said.
“Importantly, our recommendations are dynamic in that they will provide the framework and the information that governments and communities will need to address further issues as they arise. Our goal is to assist the community in staying up to date with these issues and future proofing our enforcement, regulatory and legal frameworks,” he said.
The ACMA, meanwhile, welcomed the Government’s acceptance of the ACCC’s conclusion that there is a need for reform. “In particular, the development of a harmonised media regulatory framework,’ said ACMA Chair Nerida O’Loughlin.
The ACMA’s current role includes regulation of key areas of media content, including in relation to news, classification and gambling. To that end, the ACMA said it’s particularly interested in the ACCC’s recommendations aimed at addressing regulatory disparity between news media businesses and digital platforms; supporting and enhancing the choice and quality of journalism; improving the balance of bargaining power between digital platforms and media businesses; ensuring digital platforms have robust codes and dispute resolution processes.
“We will review the report and stand ready to participate and contribute to the Government’s public consultation process and considerations of the issues,” O’Loughlin said.
During the course of its Inquiry, the ACCC identified many adverse effects associated with digital platforms, many of which flow from the dominance of Google and Facebook.
- The market power of Google and Facebook has distorted the ability of businesses to compete on their merits in advertising, media and a range of other markets
- The digital advertising markets are opaque with highly uncertain money flows, particularly for automated and programmatic advertising
- Consumers are not adequately informed about how their data is collected and used and have little control over the huge range of data collected
- News content creators are reliant on the dominant digital platforms, yet face difficulties in monetising their content
- Australian society, like others around the world, has been impacted by disinformation and a rising mistrust of news.
“The dominant digital platforms’ response to the issues we have raised might best be described as ‘trust us’,” Mr Sims said.
“There is nothing wrong with being highly focused on revenue growth and providing increasing value to shareholders; indeed it can be admired. But we believe the issues we have uncovered during this Inquiry are too important to be left to the companies themselves.”
“Action on consumer law and privacy issues, as well as on competition law and policy, will all be vital in dealing with the problems associated with digital platforms’ market power and the accumulation of consumers’ data,” Mr Sims said.
Australian media businesses and news consumers
The ACCC has made a series of recommendations to address the digital platforms’ impact on Australian media businesses and how Australians access news.
- Requiring designated digital platforms to each provide the Australian Communications and Media Authority (ACMA) with codes to address the imbalance in the bargaining relationship between these platforms and news media businesses and recognise the need for value sharing and monetisation of content
- Addressing the regulatory imbalance that exists between news media businesses and digital platforms, by harmonizing the media regulatory framework
- Targeted grants to support local journalism of about AU$50 million a year
- Introducing measures to encourage philanthropic funding of public interest journalism in Australia
- ACMA monitoring the digital platforms’ efforts to identify reliable and trustworthy news
- Requiring the digital platforms to draft and implement an industry code for handling complaints about deliberately misleading and harmful news stories
- Introducing a mandatory take-down ACMA code to assist copyright enforcement on digital platforms.
The Inquiry notes the acquisition of startups by large digital platforms has the potential to remove future competitive threats. Acquisitions may also increase the platforms’ access to data. Both situations may further entrench a platform’s market power.
The ACCC recommends changes to Australia’s merger laws to expressly require consideration of the effect of potential competition and to recognise the importance of data. The ACCC also recommends that large digital platforms agree to a notification protocol that would alert the ACCC to proposed acquisitions that may impact competition in Australia.
The report also calls on Google to allow Australian users of Android devices (new and existing) to choose their search engine and internet browser from a number of options, as proposed in Europe, rather than being provided with defaults.
Effective consumer protections are critical to addressing issues associated with dominant digital platforms. Throughout this Inquiry, the ACCC has identified some problematic data practices with the potential to cause consumer harm.
The ACCC is well advanced with investigations into some of these data practices to determine whether there has been a contravention of the Australian Consumer Law.
To deal with further data practices that do not fit neatly within the existing consumer law, the ACCC also recommends introducing a general prohibition on unfair commercial practices.
“Introducing this broad, flexible prohibition will increase consumer protections in fast-moving digital markets to safeguard consumers’ ability to make informed and genuine choices,” Mr Sims said.
The ACCC has also again recommended unfair contract terms should be prohibited and should attract civil pecuniary penalties, and not just be voidable as they are now.
The ACCC further recommends a mandatory standard to bolster a digital platforms’ internal dispute resolution processes and that an ombudsman scheme be established, to assist with resolving disputes and complaints between consumers and digital platform providers.
In light of the overlapping nature of privacy, competition and consumer protection issues in digital markets, the ACCC has made a range of privacy-related recommendations, including:
- Strengthening protections in the Privacy Act
- Broader reform of the Australian privacy law framework
- The introduction of a privacy code of practice specifically for digital platforms
- The introduction of a statutory tort for serious invasions of privacy.
The Inquiry found that digital platforms’ privacy policies are long, complex, vague and difficult to navigate and that many digital platforms do not provide consumers with meaningful control over the collection, use and disclosure of user data.
Problematic data practices include the use of click-wrap agreements and take it or leave it terms.
“We’re very concerned that current privacy policies offer consumers the illusion of control but instead are almost legal waivers that give digital platforms’ broad discretion about how they can use consumers’ data,” Mr Sims said.
“Due to growing concerns in this area, we believe some of the privacy reforms we have recommended should apply economy wide.”
The recommended amendments to the Privacy Act should be supplemented by an enforceable privacy code of practice, developed by the Office of the Australian Information Commissioner (OAIC), and address data practices specific to digital platforms.
Continued scrutiny of digital platforms
The ACCC recommends the Government establish a specialist digital platforms branch within the ACCC, with standing information-gathering powers, to proactively monitor and investigate potentially anti-competitive conduct by digital platforms and conduct that may breach our consumer laws, and to undertake rolling market studies.
“We believe continuing scrutiny is necessary given the critical position that digital platforms occupy in the digital economy, their continued expansion and the opacity and complexity of the markets in which they operate,” Mr Sims said.
One of the first tasks of the new branch should be to conduct an inquiry into the supply of ad-tech services and the supply of online advertising services by advertising and media agencies.
The inquiry would identify whether any competition or efficiency concerns exist and help achieve greater transparency in the supply of these services.
“The ACCC branch will also provide regular reports to Government on issues as they arise, work closely with other arms of government to help co-ordinate work in this vital area, and be the crucial link with our overseas counterparts to share learnings and responses,” Mr Sims said.
Expert regulators and agencies to play complementary roles
The ACCC recommends future law enforcement and regulation of digital platforms be dealt with by the current regulators including the ACMA, the OAIC and the ACCC.
“The ACCC, the ACMA and the OAIC are already working together closely and have now built up expertise in the areas covered by this Inquiry,” Mr Sims said.
“There has been global interest in this timely Australian inquiry and the many significant international reports and external developments in the past 18 months. These reports demonstrate the shared concerns and momentum for reform.”
“The world has now recognised the impact of the digital platforms’ market power and the impact this has on consumers, news, businesses and society more broadly. Continuing national and world action will now follow,” Mr Sims said.