The ACCC's Digital Platforms Inquiry Final Report has been released with 23 recommendations for wide-ranging regulatory change in areas including competition and consumer law, privacy, copyright and media regulation.

This alert outlines the key points of the Final Report for consideration. Given the potential impact of these recommendations on the entire digital media ecosystem in Australia, we intend to release additional commentary in the near future, focusing in greater detail on certain of these key points.

Final Report

The Final Report was made public on 26 July, after being provided by the ACCC to the Treasurer at the end of last month.

The Treasurer has indicated that the Government:

  • "accepts the ACCC's overriding conclusion that there is a need for reform - to better protect consumers, improve transparency, recognise power imbalances and ensure that substantial market power is not used to lessen competition in media and advertising services markets"; and
  • "also accepts that there is a need to develop a harmonised media regulatory framework."

On 1 August, he confirmed that there will be a 12 week public consultation process, led by Treasury and involving the Department of Communications and the Arts as well as the Attorney-General's Department. The consultation commences immediately, with an initial six-week period during which written submissions will be accepted, followed by six weeks of targeted consultation meetings, with the entire process concluding on 24 October.

Following this, the Government intends to respond to the Final Report by the end of 2019.

Recommendations

Recommendations from the ACCC include the following:

Competition law changes: Proposed changes to competition law, including in particular updates to Australia's mergers framework.

ACCC digital platforms branch: Establishment of a special digital platforms branch within the ACCC with a proposal to empower the branch to hold extended public inquiries covering periods of at least 5 years, with the ability to compel provision of information.

Separate inquiry for digital advertising markets: A proposed inquiry into competition for the supply of ad tech services and online advertising services by advertising and media agencies.

Media regulatory changes: A proposed new platform-neutral media regulatory framework including a uniform classification scheme and consistent advertising restrictions, to be approached in stages.

Code of conduct regarding news media relationships: A proposal that "designated" digital platforms each have a code of conduct governing their relationship with news media businesses, to be approved and enforced by the ACMA.

Copyright take-down code: A proposed industry code to be enforced by the ACMA under the Telecommunications Act governing take-down processes for digital platforms operating in Australia.

Media industry support: Support for quality news media and journalism, including proposals for stable and adequate funding of public broadcasters, local and regional journalism grants and tax settings to encourage philanthropic support.

Digital media literacy: Steps to promote digital media literacy in the community and in schools.

Countering disinformation: Proposed oversight of steps by digital platforms to assist end users to identify and assess the credibility of news sources, and proposed requirements for large digital platforms to implement a code of practice aimed at handling of complaints about disinformation and related issues.

Privacy law changes:

  • Significant changes proposed to Australian privacy law including:
    • proposed changes to the definition of personal information covered by the Privacy Act;
    • proposed strengthening of collection notice requirements;
    • proposal to require consent whenever personal information is collected, used or disclosed, unless the information is necessary for the performance of a contract to which the consumer is party, is required by law, or is otherwise necessary for public interest reasons;
    • proposal for clearer requirements around what will constitute a valid consent;
    • proposed right for consumers to request deletion of personal information, unless the retention of the information is necessary for the performance of a contract to which the consumer is party, is required by law, or is otherwise necessary for public interest reasons;
    • proposal to give individuals direct rights of action; and
    • proposal for increased penalties.
  • Proposal for broader reform to Australian privacy law.
  • Proposal for a digital platforms data practices code of practice to be developed and enforced by the OAIC.
  • Support for introduction of a statutory cause of action for serious invasions of privacy (as previously recommended by the ALRC).

Consumer law changes: Proposal to make unfair terms prohibited and subject to civil penalties (rather than just voidable) as well as the introduction of prohibitions on certain unfair trading practices.

Dispute resolution: Proposed requirements for large digital platforms to comply with minimum internal dispute resolution standards developed by the ACMA, as well as the establishment of an independent ombudsman scheme.

Whilst not the subject of a current recommendation, the Final Report also flags that the ACCC will revisit the question of whether to extend the Consumer Data Right to provide for digital platform data portability in the future.

These recommendations, if implemented, have the potential to dramatically alter the regulatory regime for all digital businesses operating in the Australian market, as well as their partners, customers and end users.

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