Government's support of ACCC Digital Platforms Inquiry

3 minute read 12.12.2019 Haydn Flack

The Australian Government has delivered its response to the Australian Competition and Consumer Commission's Digital Platforms Inquiry. The Government's response has largely supported the ACCC's recommendations and sets out a detailed roadmap of work for 2020 and into 2021. This includes the creation of a new 'Digital Platforms Branch' within the ACCC which will continue to examine the sector.

In July 2019, the Government released the ACCC's Digital Platforms Inquiry Final Report, which followed a long-running inquiry into digital platforms in Australia that spanned more than 18 months. The Report, which set out 23 broad-reaching recommendations, found that there were intersecting issues at play touching on competition law, consumer protection, privacy and media regulation. The recommendations by the ACCC were designed to pull 'regulatory levers' across each of these areas.

At the time, we shared our insights about the potential implications of the Digital Platforms Inquiry in respect of both competition and consumer regulation and also the future of privacy laws in Australia.

The Government's response to the Digital Platforms Inquiry

The Government's response accepts the need for change. It delivers a roadmap for a program of work and reforms which are designed to promote competition, enhance consumer protection and support Australia's media landscape in the digital age. Significantly, the response includes immediate action to

Establish a new 'Digital Platforms Branch' within the ACCC with a funding commitment of $27 million over the next four years.
Empower the ACCC to work with digital platforms and media businesses to develop and implement voluntary codes to address imbalances in bargaining power. The ACCC is required to provide an update to Government in May 2020, with codes to be finalised by November. Significantly, if agreement is not reached, the Government will look for alternatives, including a mandatory code.
Commence a detailed review of the Privacy Act to assess the extent to which broader reforms to the Australian privacy framework are required.

Significantly, a number of key recommendations have been marked for further consideration. This includes the detailed review of Australia's privacy framework, along with further consultation about:

Proposed amendments to merger laws (slated for public consultation in 2020).
Policy options to strengthen the unfair contract term regime in the Australian Consumer Law (consultation from late 2019 with a decision to be made in 2020).
How an unfair trading practices prohibition could be implemented to address potentially unfair trading practices (further work to be undertaken in 2020).

While the Government rejected several recommendations, the response is largely an endorsement of the ACCC's work. The response signals a busy period ahead for the ACCC and ongoing scrutiny for platform operators. Funding for the Digital Platforms Branch, including to carry out an immediate inquiry into competition for ad tech services, along with directions to the ACCC to facilitate voluntary codes and monitor Google's rollout of browser and search engine choice in Europe, are all on the cards for 2020.

Many of the issues in the Digital Platforms Inquiry were echoed in the ACCC's report into Customer Loyalty Schemes released last week. This further suggests that we should expect continued focus by the ACCC on digital platforms and competition and consumer enforcement issues associated with data.