Answer ... There are likely to be legislative reforms in the next 12 months. The Australian Competition & Consumer Commission (ACCC) has recently completed its Digital Platforms Inquiry, which examined the impact of digital platforms such as Google and Facebook on competition in the media and advertising services markets. The government has yet to formally respond to the ACCC’s recommendations from that inquiry. However, it is likely to adopt the two recommendations that the ACCC made in relation to mergers, as follows:
that Section 50(3) of the Competition and Consumer Act (CCA) be amended to include as a factor that the ACCC should take into consideration in assessing mergers and acquisitions:
- the likelihood that the transaction would result in the removal from the market of a potential competitor; and
- the nature and significance of assets, including data and technology, being acquired directly or indirectly as part of the transaction; and
- that large digital platforms, particularly Google and Facebook, agree a notification protocol with the ACCC to provide advance notice of any proposed acquisitions that may potentially impact on competition in Australia.
It is likely that the ACCC, as a result of its Digital Platforms Inquiry, will have an increased focus on mergers and acquisitions generally in the online space over the next few years.
In addition, the ACCC in recent times has been unsuccessful in opposing mergers in the Federal Court and the Australian Competition Tribunal. The ACCC chair has indicated that if this trend continues, the ACCC will press for amendments to the CCA to make it easier to oppose mergers in concentrated markets.