New Federal data-sharing Bill introduced into Federal Parliament.
The Federal Government recently introduced the Data Availability and Transparency Bill 2020 (Cth), which, if enacted, will authorise and regulate controlled access (as opposed to open release to the public) to Australian Government data using a flexible principles-based approach to data sharing. The Bill provides for a National Data Commissioner to be established, which will be responsible for overseeing the proposed scheme. The purpose of the scheme will be to make Australian Government data more accessible to improve service delivery and government policies, as well as supporting R&D. The Bill follows the Australian Government's 2018 commitment to reform how it shares public sector data. Participants in the scheme will be known as "data scheme entities" and will comprise data custodians (the Commonwealth bodies that control the data and have the right to deal with it), accredited users (entities accredited by the Commissioner to access the data provided they meet security, privacy, infrastructure and governance requirements), and accredited data service providers (entities accredited by the Commissioner to provide related data services; these entities are anticipated to share expertise with Government agencies to assist them share and use the data safely). The proposed scheme will permit data sharing where the sharing is for a permitted purpose (government service delivery, informing government policy and programs or R&D), data sharing principles have been applied to manage the risks of sharing and a data sharing agreement has been entered into recording the terms of the proposed arrangement. If these requirements are met, the Bill, if enacted, will override any Commonwealth, State or Territory laws which prevent the proposed data sharing taking place, subject to certain secrecy and non-disclosure provisions that will not be overridden (these provisions will be identified in the regulations).
ACCC seeks comments on Google's proposed Fitbit undertaking
As part of its proposed acquisition of Fitbit, Inc., Google recently proposed a draft undertaking to the ACCC on which the ACCC invited submissions. The draft undertaking covers Google's rights to use user data collected through Fitbit and Google wearable devices for advertising purposes, as well as maintaining access for third party health and fitness apps to such data and interoperability between third party wearable devices and Android smartphones. Google has proposed giving the draft undertakings for a period of 10 years, with the ACCC having the right to extend the user data undertakings for a further 10 years. The undertakings were offered by Google following the ACCC releasing a statement of issues on 18 June 2020 in relation to the proposed transaction, in which the ACCC outlined its preliminary views on competition issues arising from it, particularly in relation to the effect it would have on competition in relevant markets in light of the increasing importance and use of wearable devices. The ACCC noted in its statement that Fitbit's data was unique and had value "for drawing health insights or for developing data-dependent health services" and that "other wearable datasets are not as voluminous, reliable or broad as Fitbit's data." Google had publicly stated that it would not use Fitbit's health and wellness data for advertising purposes, but the ACCC did not place significant weight on those public statements.
Productivity Commission releases Issues Paper on a proposed "right to repair" for consumer products in Australia
The Productivity Commission recently released a new Issues Paper relating to a new "right to repair" for consumer products. A key issue the paper highlights is the increasing technological complexity of products and in many cases the difficulty (or impossibility) of repairing them, which leads to costly and wasteful outcomes and can give rise to competition issues in repair markets. The paper broadly defines a "right to repair" as relating to the ability of consumers to have their products repaired at competitive prices by the repairer of their choice. It notes the inherent difficulty in balancing the interests of consumers with those of manufacturers. Concerns raised by manufacturers include consumer safety, data risks and IP issues. The paper suggests consumers may face unnecessary barriers to accessing competitive repair services, particularly in the digital economy. One such barrier mentioned in the paper is a possible practice whereby manufacturers adopt strategies to cause their products to become obsolete thereby requiring a replacement (so-called "planned obsolescence"). The paper notes the options the Commission has identified to address barriers to repair include additional regulatory requirements (eg, improved information standards) and reforms to competition policy, IP law and consumer law. International policy examples in this area include a duty to deal (which requires manufacturers to provide independent repairers with fair access to parts, tools and repair information), product design standards (for easier product disassembly) and laws prohibiting product obsolescence and providing extended guarantee periods. Submissions are due by 1 February 2021.
Bill for proposed media and digital platform mandatory bargaining code referred to the Economics Legislation Committee for an inquiry and report.
The Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020 (Cth) was recently introduced into Federal Parliament. If enacted, the Bill will establish a mandatory code of conduct to address the bargaining power imbalances between designated digital platforms and local news businesses. The Bill has since been referred to the Economics Legislation Committee for an inquiry and report. The Committee's report is due by 12 February 2021. Submissions on the Bill are due by 18 January 2021. The code will initially apply to Facebook Newsfeed and Google Search. Other digital platforms can be added at a later date. A key aspect of the code is that where a digital platform and local news business cannot reach a negotiated agreement in relation to the amount of remuneration to be paid to local news business for its news content made available on the digital platform within 3 months of the local news business indicating an intention to negotiate with the digital platform, the parties will be subjected to a compulsory arbitration. Each party will make a final offer stating a remuneration amount to be paid to the local news business. The arbitral panel will select one of those two offers, unless the panel considers neither offer is in the public interest. If the arbitral panel considers that is the case, it will have the power to amend the more reasonable of the two offers. The proposed code would also require digital platforms to notify local news businesses of changes to their algorithms that will have a significant effect on the covered news content. The code would allow contracting out, provided the parties comply with various conditions. The Bill also contains penalties for contraventions. Digital platforms are liable for contraventions and can attract maximum penalties being the greater of: $10 million, three times the benefit reasonably attributable to the relevant contravention, and if the benefit cannot be determined by a court, 10% of the platform's annual turnover in the previous 12 months.
OAIC publishes first six-month report of COVIDSafe app.
On 23 November 2020, the Office of the Information Commissioner (OAIC) issued its first six-month report on privacy issues associated with the COVIDSafe app. We have previously reported on privacy issues raised by the app following its launch on 26 April 2020 and the subsequent introduction of a new Part VIIIA into the Privacy Act to deal specifically with "public health contact information" on 16 May 2020. The COVIDSafe Report May-November 2020 analyses the Commissioner's involvement in the oversight of the app since its inception, and reveals that there was limited public concern. Between 16 May and 15 November 2020, the OAIC received just 11 enquiries. No complaints relating to COVIDSafe were received, no investigations were commenced and there were no relevant data breach notifications. The OAIC was nevertheless active in providing advice to a range of Australian government departments, facilitating briefings with privacy experts and state and territory privacy commissioners, participating in the National COVID-19 Privacy Team and intervening in private sector activities which it regarded as contraventions of the Act.
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