ACCC releases Discussion Paper for 5th Interim Report – Updating Competition and consumer law for digital platform services

Another ACCC Discussion Paper

The ACCC on Monday released a Discussion Paper looking at whether the existing competition and consumer protection laws, under the Competition and Consumer Act including the Australian Consumer Law, are sufficient to address the competition and consumer protection concerns it identified in relation to digital platform services in Australia in its earlier reports. 

Where does it fit with the other ACCC Digital Platforms reports and process?

For a quick re-cap, those earlier reports include:

• The Digital Platforms Inquiry Final Report (July 2019) – considering the impact of online search engines, social media and digital content aggregators (“digital platforms”) on competition in the media and advertising services markets, focusing in particular on the impact on news and journalism.
• Digital Platforms Services Inquiry Interim Report No 1 (October 2020) – looking into competition and consumer issues associated with online privacy messaging services.
• Digital platform Services Inquiry interim Report No 2 (March 2021) – looking into App Marketplaces, in particular the distribution of mobile apps to users of smartphones and other mobile devices, focusing on the Apple App Store and the Google Play Store.
• Digital Platform Services Inquiry Interim Report No 3 (September 2021) – looking at search engine services, pre-installed browsers and search defaults and choice screens.
• Digital Advertising Services Inquiry Final Report – released in September last year and which we summarised here, looking into the markets for the supply of ad tech services and ad agency services.

In addition to the 5^th Digital Platform Services Inquiry Report which will be informed by this Discussion Paper just released, which is due to the Treasurer by 30 September 2022, the ACCC is also due to provide:

• its Digital Platform Services Inquiry Interim Report No 4 – (due to the Treasurer by 31 March 2022), looking at the operation of and competition in general online retail marketplaces in Australia; and
• further interim reports every six months until the inquiry is due to conclude with a final report to the Treasurer by 31 March 2025.

What are the key issues in the Discussion Paper?

The current Discussion Paper seeks views on whether a new regulatory framework is required to address competition and consumer issues in the market, and if so, what that should look like.  The options being considered include:

• Prohibitions and obligations contained in legislation
• The development of code(s) of practice
• The conferral of rule-making powers on a regulatory authority
• The introduction of pro-competition or pro-consumer measures following a finding of a competitive or consumer harm
• The introduction of a third-party access regime
• Any other approaches stakeholders put forward, and
• The status quo (except in areas where the ACCC has already put forward recommendations, such as Ad Tech services).

Other issues the Discussion Paper is also looking at include:

• The risks and benefits of implementing regulations on the supply of social media services, online privacy messaging services, electronic marketplace services and other digital platform services
• Whether measures should be introduced to increase data access in the supply of digital platform services, such as data portability, data interoperability, data sharing, or mandatory data access
• Whether data limitation measures to limit data use in the supply of digital platform services should be introduced and in what circumstances
• Whether additional measures are necessary to protect consumers against dark patterns online, scams, harmful content and malicious and exploitative apps
• Whether fair-trading obligations are required for digital platform services
• Whether (in addition to the recommendations made in the Ad Tech Final Report), increased transparency is required in respect of price, including in relation to data practices and key decision-making algorithms digital platforms use to display content and advertising, rank search results and personalise services, and
• Whether merger laws require reform.

Next steps for IAB

IAB Australia will review the Discussion Paper and consider any areas where it can provide input to the ACCC’s process.  We will continue to focus on developing a proposal to address the ACCC’s Ad Tech Services Inquiry report, particularly Recommendation 4 of that report, which requires industry to develop standards for ad tech providers to publish average fees and take rates for ad tech services and to enable full and independent verification of ads purchased using DSPs. 

 

If you are an IAB Australia member and have any questions or comments please contact IAB Australia Director of Policy and Regulatory Affairs Sarah Waladan.