The Australian Competition and Consumer Commission (ACCC) has made 23 recommendations in its final report of its Digital Platforms Inquiry into Google and Facebook.
The recommendations respond to the substantial market power weilded by the digital platforms, their impact on competition in media and advertising markets and implications for news media businesses, advertisers and consumers.
The federal government says it recognises that news and journalism is an important public good and that, with platforms collecting and using large volumes of personal information, consumers need to be properly informed about the data collected, how it is being used and by who.
The government has accepted 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.
The federal government also accepts that there is a need to develop a harmonised media regulatory framework.
The full government response to the report’s recommendations will be informed by a public consultation processm running for 12 weeks.
Recommendation 1: Changes to merger law
The Competition and Consumer Act 2010 be amended to incorporate the following additional factors:
- the likelihood that the acquisition would result in the removal from the market of a potential competitor;
- the nature and significance of assets, including data and technology, being acquired directly or through the body corporate.
Recommendation 2: Advance notice of acquisitions
Large digital platforms to agree to a notification protocol, to provide advance notice to the ACCC of any proposed acquisitions potentially impacting competition in Australia.
Recommendation 3: Changes to search engine and internet browser defaults
Google should provide Australian users of Android devices with the same options being rolled out to existing Android users in Europe: the ability to choose their default search engine and default internet browser from a number of options. If Google does not introduce similar options for Australian Android users by six months from the date of the Report, the ACCC will submit to the Government that it should consider compelling Google to offer this choice.
Recommendation 4: Proactive investigation, monitoring and enforcement of issues in markets in which digital platforms operate
A specialist digital platforms branch be established within the ACCC to build on and develop expertise in digital markets and the use of algorithms, to
- proactively monitoring and investigating instances of potentially anti-competitive conduct and conduct causing consumer harm by digital platforms, which impact consumers, advertisers or other business users (including news media businesses)
- taking action to enforce competition and consumer laws relating to the conduct of digital platforms
- conducting inquiries and making recommendations to Government to address consumer harm and impediments to the efficient and effective operation of the markets in which digital platforms operate, caused by market failure.
Recommendation 5: Inquiry into ad tech services and advertising agencies
The specialist digital platforms branch (as proposed by Recommendation 4) be directed to hold an inquiry into competition for the supply of ad tech services and the supply of online advertising services by advertising and media agencies.
Recommendation 6: Process to implement harmonised media regulatory framework
A new platform-neutral regulatory framework be developed and implemented to ensure effective and consistent regulatory oversight of all entities involved in content production or delivery in Australia, including media businesses, publishers, broadcasters and digital platforms. This would create a level playing field that promotes competition in Australian media and advertising markets..
Recommendation 7: Designated digital platforms to provide codes of conduct governing relationships between digital platforms and media businesses to the ACMA
Designated digital platforms to each implement a code of conduct to govern their relationships with news media businesses. Each platform’s code of conduct should ensure that they treat news media businesses fairly, reasonably and transparently in their dealings with them, and contain at least the following commitments:
- the sharing of data with news media businesses
- the early notification of changes to the ranking or display of news content
- that the digital platform’s actions will not impede news media businesses’ opportunities to monetise their content appropriately on the digital platform’s sites or apps, or on the media businesses’ own sites or apps
- where the digital platform obtains value, directly or indirectly, from content produced by news media businesses, that the digital platform will fairly negotiate with news media businesses as to how that revenue should be shared, or how the news media businesses should be compensated.
Recommendation 8: Mandatory ACMA take-down code to assist copyright enforcement on digital platforms
A mandatory industry code be implemented to govern the take-down processes of digital platforms operating in Australia. The code will enable rights holders to ensure the effective and timely removal of copyright-protected content from digital platforms
Recommendation 9: Stable and adequate funding for the public broadcasters
Stable and adequate funding should be provided to the ABC and SBS in recognition of their role in addressing the risk of under-provision of public interest journalism that generates broad benefits to society.
Recommendation 10: Grants for local journalism
The Regional and Small Publishers Jobs and Innovation Package should be replaced with a targeted grants program that supports the production of original local and regional journalism, including that related to local government and local courts. The program should be platform-neutral and administered at arm’s length from Government, with eligibility criteria designed by an independent expert committee. Due to its broader scope than the Regional and Small Publishers Jobs and Innovation Package, which provided $20 million per year, the program should provide a greater amount of funding – totalling in the order of $50 million per year.
Recommendation 11: Tax settings to encourage philanthropic support for journalism
Tax settings should be amended to establish new categories of charitable purpose and deductible gift recipient (DGR) status for not-for-profit organisations that create, promote or assist the production of public interest journalism.
Recommendation 12: Improving digital media literacy
A Government program be established to fund and certify non-government organisations for the delivery of digital media literacy resources and training based on frameworks currently used by the Online Safety Grants Program and Be Connected program administered by the Office of the eSafety Commissioner. The resources and training should be broadly delivered through community centres, libraries, schools and seniors centres for the benefit of all Australians.
Recommendation 13: Digital media literacy in schools
The Terms of Reference for the review of the Australian Curriculum scheduled for 2020 should include consideration of the approach to digital media literacy education in Australian schools. Recommendation 14: Monitoring efforts of digital platforms to implement credibility signalling An independent regulator, such as the ACMA, should be directed to monitor the voluntary initiatives of digital platforms to enable users to identify the reliability, trustworthiness and source of news content featured on their services. In undertaking this role, the regulator should be empowered to obtain data and information from digital platforms relevant to its inquiries, publicly report on its findings and make recommendations in relation to regulatory action if platforms’ voluntary initiatives are ineffective.
Recommendation 15: Digital Platforms Code to counter disinformation
Digital platforms with more than one million monthly active users in Australia should implement an industry code of conduct to govern the handling of complaints about disinformation (inaccurate information created and spread with the intent to cause harm) in relation to news and journalism, or content presented as news and journalism, on their services. Application of the code should be restricted to complaints about disinformation that meet a ‘serious public detriment’ threshold as defined in the code. The code should also outline actions that constitute suitable responses to complaints, up to and including the take-down of particularly harmful material.
Recommendation 16: Strengthen protections in the Privacy Act
Update ‘personal information’ definition: Update the definition of ‘personal information’ in the Privacy Act to clarify that it captures technical data such as IP addresses, device identifiers, location data, and any other online identifiers that may be used identify an individual.
Strengthen notification requirements: Require all collection of personal information to be accompanied by a notice from the entity collecting the personal information (whether directly from the consumer or indirectly as a third party), unless the consumer already has this information or there is an overriding legal or public interest reason.
Recommendation 17: Broader reform of Australian privacy law
Broader reform of Australian privacy regime to ensure it continues to effectively protect consumers’ personal information in light of the increasing volume and scope of data collection in the digital economy.
Recommendation 18: Privacy code for digital platforms
An enforceable code of practice developed by the OAIC (Office of the Australian Information Commissioner), in consultation with industry stakeholders, to enable proactive and targeted regulation of digital platforms’ data practices (DP Privacy Code). The code should apply to all digital platforms supplying online search, social media, and content aggregation services to Australian consumers and which meet an objective threshold regarding the collection of Australian consumers’ personal information.
Recommendation 19: Serious invasions of privacy
Introduce a statutory cause of action for serious invasions of privacy, as recommended by the Australian Law Reform Commission (ALRC). This cause of action provides protection for individuals against serious invasions of privacy that may not be captured within the scope of the Privacy Act. The cause of action should require privacy to be balanced against other public interests, such as freedom of expression and freedom of the media.
Recommendation 20: Unfair contract terms
Amend the Competition and Consumer Act 2010 so that unfair contract terms are prohibited. This would mean that civil penalties apply to the use of unfair contract terms in any standard form consumer or small business contract.
Recommendation 21: Prohibition on certain unfair trading practices
Amend the Competition and Consumer Act 2010 to include a prohibition on certain unfair trading practices. The scope of such a prohibition should be carefully developed such that it is sufficiently defined and targeted, with appropriate legal safeguards and guidance.
Recommendation 22: Digital platforms to comply with internal dispute resolution requirements
The development of minimum internal dispute resolution standards by the ACMA to apply to digital platforms. The standards should, among other things, set out requirements for the visibility, accessibility, responsiveness, objectivity, confidentiality and collection of information of digital platforms internal dispute resolution processes. They should also set out the processes for continual improvement, accountability, charges and resources. All digital platforms that supply services in Australia, and have over one million monthly active users in Australia, will be required to comply with the standards. Once published, relevant digital platforms will have six months to comply with the standards. Breaches of the standards would be dealt with by the ACMA, which will be vested with appropriate investigative and information gathering powers and the capacity to impose sufficiently large sanctions for breaches to act as an effective deterrent.
Recommendation 23: Establishment of an ombudsman scheme to resolve complaints and disputes with digital platform providers
The establishment of an independent ombudsman scheme to resolve complaints and disputes between consumers and digital platforms, and businesses and digital platforms. The ACMA and the relevant ombudsman will determine the nature of complaints and disputes that would be subject to the scheme. At a minimum, it should cover complaints or disputes from businesses relating to the purchase or performance of advertising services and complaints or disputes from consumers, including in relation to scams and the removal of scam content.
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