The Australian government will review Australia’s Privacy Act, give more power to the ACCC to police digital platforms and order an inquiry into the supply of ad tech services and online advertising by agencies.

Following a 12-week consultation period, the federal government today issued its response to the ACCC’s digital platform inquiry report, released in July, which made 23 recommendations covering privacy, competition and the state of the media landscape. 

The response was led by Treasurer Josh Frydenberg, Communications Minister Paul Fletcher and Attorney General Christian Porter. 

The government committed to establishing a special unit in the ACCC to monitor and report on the state of competition and consumer protection in digital platform markets, take enforcement action as necessary and undertake inquiries as directed by the Treasurer, starting with the digital advertising tech supply chain, focusing on display ads.  A preliminary report into the ad tech sector will be released in 2020. 

The ACCC will also be tasked with developing a voluntary code of conduct to address bargaining power concerns between digital platforms and media businesses. The ACCC will provide a progress report to government on code negotiations in May 2020, with codes to be finalised no later than November 2020. 

The government has already committed $27 million over four years to fund a Digital Platforms Branch within the ACCC. 

Digital platforms will be able to write their own rules when it comes to disinformation published on their platforms. The government will ask the major digital platforms to develop a voluntary code (or codes) of conduct for disinformation and news quality, which will be enforced by ACMA.

The government will pilot an external dispute resolution scheme to determine whether or not to establish a Digital Platforms Ombudsman to resolve complaints and disputes between digital platforms and individual consumers and small businesses using their services.

Privacy Law 

The government’s response builds on earlier announcements made in March 2019 that it will consult on draft legislation to amend the Privacy Act to increase maximum civil penalties to match penalties under the Australian Consumer Law. The new laws will also require the development of a binding privacy code that will apply to social media platforms and other online platforms that trade in personal information. 

The report also leaves the door open for GDPR-like regulations. The government will seek input on amending the definition of ‘personal information’ in the Privacy Act to capture technical data and other online identifiers (like IP addresses); strengthening existing notice and consent requirements to ensure entities meet best practice standards; and introducing a direct right of action for individuals to bring actions in court to seek compensation for an interference with their privacy under the Privacy Act. 

The review will also allow for further consultation on the ACCC’s reform proposals to enable consumers to request the erasure of their personal information. Known as subject rights requests, data requests from users require businesses to implement new automated processes and systems.

Managing Director Sunita Bose of technology industry group DIGI said they will be examining the government’s response to the ACCC digital platforms inquiry closely to ensure “consumer protections are fit for a digital era, and that there are no unintended consequences for Australia’s digital future”.

“We welcome an economy-wide review of the Privacy Act, as consumers will have the same expectations of privacy, regardless of the specific company they interact with or the sector within which that company sits,” Bose said in a statement.

“At the same time, we also recognise that privacy needs to be central to digital products and services and have been engaging with the OAIC on the Government’s proposed digital platforms code.”

Responding to the report, Angelene Falk, the Australian Information Commissioner and Privacy Commissioner, said the review of Australia’s privacy laws is an opportunity to look at international models.

“Greater interoperability of our privacy rules with other jurisdictions can help minimise regulatory friction for business and ensure Australians’ data is protected wherever it flows,” she said.

“As well as building in sufficient obligations to keep organisations accountable, we need further improvements that support people in exercising choice and control over how their data is used. A privacy framework that empowers consumers and allows them to trust that their personal information will be protected will support innovation and economic growth.”

CEO of IAB Australia, Gai Le Roy, said the industry body would work closely with the government through on-going inquiries and reviews of the Privacy Act.

“The government’s response to the recommendations from the ACCC digital platforms provides much welcomed clarity around both the process and roadmap to support a sustainable Australia media landscape in the digital age,” Le Roy said in a statement. “The IAB’s considerable experience both local and globally in the issues of privacy, as well as industry standards and guidelines places us in a unique position to continue closely consulting with government as they work through their inquiry into ad tech services and advertising agencies, as well as their work in strengthening protections in the Privacy Act.”

Media reform 

The government says it will commence a staged process to reform media regulation towards “an end state of a platform-neutral regulatory framework covering both online and offline delivery of media content to Australian consumers”. 

“This is a large and complex reform, so we will work through the detail carefully, dividing the work into a number of stages, as the ACCC recommends, and consulting with affected stakeholders at each stage,” the report states.  

The work in 2020 will include developing a uniform classification framework across all media platforms and considering whether there should be Australian content obligations on subscription video-on-demand services like there are for TV broadcasters. 

Bose also welcomed efforts to modernise relevant media laws for a digital era.

“We look forward to contributing to the development of a regulatory framework that duly recognises some of the fundamental differences between digital products and media businesses,” she said.

Hugh Marks, CEO of Nine, also welcomed the government’s report.

“This is a much needed and timely announcement from the government in response to the recommendations that had been made by the ACCC as part of their digital platforms inquiry. It provides a clear timeline and platform for our industry to be able to engage with the social media platforms on a basis we ultimately believe will be a win-win not only for our industry and the people that work in it, but the social platforms as well,” he said in a statement.

On the ACCC recommendation to amend merger law proposals, the government is kicking the can down the road and will commence a broad consultation process on the proposed amendments in 2020. The report notes that courts may already consider these matters in merger cases and that the proposed changes would affect businesses across the Australian economy and not just digital platforms.

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