Key Points
The Response sets out four immediate commitments and other long-term commitments, with most developments to occur between 2020-2021.
Key changes include:
- the development of a digital platforms specialist branch at the ACCC;
- a broad review of Australian privacy law;
- broad changes to Australian media content laws, designed to create a level playing field for online and offline businesses;
- an inquiry into the supply of adtech services and advertising agencies;
- the development of a code of conduct for disinformation and news quality, to be overseen by the Australian Media and Communications Authority (ACMA);
- the development of a code of conduct addressing bargaining imbalances between new media businesses and digital platforms;
- the development of a voluntary notification protocol, designed to give the ACCC advance notice of any digital platform acquistions that may affect competition in Australia; and
- a pilot digital platforms dispute resolution scheme.
Material Takeways
National media reform: Media regulation reforms to commence in 2020 and will focus on:
- the development of a platform-neutral media regulatory framework, including harmonising classification across delivery formats such as games, films, series on all platforms but excluding programs broadcast television;
- a review of the advertising rules and restrictions across all delivery platforms and mechanisms to monitor and enforce the regulator framework, to commence later in 2020; and
- potential content obligations on subscription video-on-demand services
Potential implications for organisations: This reform demonstrates the Government's priority to reform all types of mediums and formats across the media landscape in both online and offline delivery of content to Australian consumers. These changes will significantly impact both traditional and new media businesses, both in regulatory sense and in relation to the competitive markets in which they operate.
New Privacy legislation: The Government will conduct a general review of the Privacy Act 1988 (Privacy Act), with particular attention to amending the definition of 'personal information', the notification requirements, the consent requirements and pro-consumer defaults, and the introduction of direct rights of action for individuals (which may or may not operate in tandem with a new statutory tort of privacy). We can expect the Government to draft new legislation in 2020 to:
- increase the maximum civil penalties under the Privacy Act to match those under the Australian Consumer Law; and
- introduce a binding online privacy code applicable to social media and other online platforms that trade in personal information, to be developed by the Office of the Australian Information Commissioner (OAIC).
Potential implications for organisations: The Government is focused on ensuring privacy laws empower Australian consumers and protect their data. These changes will be whole-of-economy changes, and will affect all entities subject to the Australian Privacy Principles (APP entities).
Governance: The Government has made the following commitments in the immediate term, being:
- The "Digital Platforms Branch": a new ACCC unit to investigate the state of competition and consumer protection in digital platforms markets, including developments in the EU, and to lead a separate inquiry of digital advertising markets including media agencies, with a preliminary response due in 2020.
- Pilot dispute resolution scheme: a pilot external dispute resolution scheme in joint consultation with large digital platforms, consumer groups and government agencies in 2020, which can resolve complaints and disputes between digital platforms and individual consumers/small businesses in 2021.
- Media businesses code of conduct: a voluntary, binding code of conduct to be developed b the ACCC governing the relationships between digital platforms and media businesses to increase transparency when reporting on and disseminating news content, to be finalised no later than November 2020.
- Combating 'fake news' code of conduct: a voluntary code of conduct to address disinformation and news quality while noting the need to balance "disinformation with rights to freedom of expression and speech," to be overseen by ACMA.
Potential implications for organisations: The introduction of a specialist digital platform branch of the ACCC is a clear expression of the Government's intention to actively regulate digital platforms and businesses conducted on them.
Rejected ACCC Recommendations
The Government has declined to support the following recommendations from the ACCC, being:
- No copyright take-down code: The Government cited concerns about the effects on the copyright market and stakeholders.
- No public interest journalism tax incentives: The Government noted that there was adequate pre-existing mechanisms for some public interest journalism organisations to seek tax deductible incentives.
- No current changes to merger control laws: The Government is considering more public consultation is required.
- No current requirement for Android search engine options: The Government is requiring the ACCC to monitor the effectiveness of a similar requirement being rolled out in Europe before taking further action.
Other Policy Recommendations
The Government also recommended providing media industry support through funding and grants for regional journalism, exploring models to help promote and develop media literacy in the community and in schools.
Digital: A Global Preoccupation
The Government's response has very clear parallels with policy debates playing out in other parts of the world, notably Europe where both the European Commission and the UK government commissioned detailed reports in the context of global calls for regulation of the digital economy.
The vast number of authorities looking into the same issues (and platforms) clearly gives rise to a risk of different and potentially conflicting legal and regulatory outcomes, with adverse effects for businesses and their consumers. There is a definite need for international coordination - a point explicitly acknowledged by ACCC.
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