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The ACCC's Digital Platforms Inquiry was intended to
focus on the impact of Google and Facebook on competition in news
and advertising. The final report confirms their power in those
markets and proposes regulation to keep them in check. But it goes
a lot further than that. The inquiry has provided a platform for
the ACCC to seek law reforms that would impact businesses across
the board.
Here is a tasting platter of some of the key conclusions.
Merger law changes: The ACCC wants to amend
the CCA 'merger factors' (things to consider when deciding
whether a merger is unlawful) to include the likelihood that the
acquisition will remove a potential competitor from the market and
the amount and kind of data that the acquirer would have as a
result of the acquisition.
Added consumer law protections: The ACCC has
taken the opportunity to put penalties for unfair contract terms (a
longstanding issue) back on the table. It also wants to prohibit
specific unfair trading practices like amending T&Cs without
reasonable notice and dissuading customers from exercising their
rights.
Privacy Act reforms: The ACCC was concerned
about how Google and Facebook collect and use data - and supports
the Government's existing proposal for increased penalties.
They're also after stronger notification, consent and data
erasure obligations, and a statutory tort for invasions of
privacy.
The digital advertising supply chain is mystifying,
possibly dodgy: The ACCC is proposing a separate inquiry
to dig into adtech, given the complexity and opacity of the supply
chain. The big news is that will include looking at advertising
agency transparency.
Surprise! Google and Facebook have market
power: Google has it in search and search advertising,
Facebook has it in social media and display advertising. That means
anything that either of them does which substantially lessens
competition is unlawful. The ACCC also said Google and Facebook had
'bargaining power' in a market for news referrals.
Traditional vs digital media: The ACCC wants
to even the playing field – applying the same regulation to
both traditional and digital media. It also wants to see a boost
for traditional media, with funding for the public broadcasters,
grants for local journalism, and tax changes to encourage
philanthropic support for journalism.
Tackling fake news: The ACCC has a few ideas
on how to do this. Digital media literacy for the community and in
schools. A new digital platforms code to counter disinformation.
Monitoring what digital platforms are doing to ensure the
reliability of news content sources on their service. We're
pretty keen to see whether this stuff works.
A whole new world of regulation for digital
platforms: This includes a shiny new branch of the ACCC
for digital markets and algorithms, new codes of conduct for
digital platforms and media businesses, and mandatory standards for
copyright enforcement via notice and take down. Plus the ability to
deal with scams and other emerging issues with new dispute
resolution standards for digital platforms, and maybe even a new
ombudsman scheme.
The Government has so far implied its support for the Report,
without making any specific response to the recommendations. Even
if it does adopt the recommendations, we'll be impressed if any
of them make it to the top of the legislative agenda in the short
term. But if and when they do, businesses will need to look
carefully at if and how the reforms impact them.
We do not disclaim anything about this article. We're
quite proud of it really.
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