“If the ACCC Digital Platforms Review was, as reported at the time, world’s best practice on regulating Big Tech, the government’s response shows Big Tech has secured world’s best practice in slowing down meaningful reform,” said Peter Lewis, Director of the Centre for Responsible Technology at the Australia Institute.
“Hardly anything from the ACCC has survived untouched with the Big Tech companies avoiding the big-ticket reform of limiting their power to take over competitors, with the government opting for voluntary compliance and incremental reviews over regulation.
“This is a shame as the Morrison Government had the opportunity to lead a re-think of how platforms should operate and challenge the conceit that a platform is not a publisher.
“Perhaps the creation of new section of the ACCC with oversight of the platforms will have an impact, but this model falls well short of the Prime Minister’s position that the rules that exist in the real world need to exist in the digital world,” Mr Lewis said.
A quick snapshot on the government response:
Rec 1- Changes to merger law
Response is to consult on ACCC recommendation. Facebook and Google worldwide have bought up over 600 potential competitors. Consultation will not arrest this trend.
Rec 2 – Notification protocol
The ACCC recommended a notification protocol for platforms to give advance notice to the ACCC of proposed acquisitions. The government says it agrees but weakens it to a “voluntary notification protocol”.
Rec 3 – Default search engines
The ACCC recommends changes to allow users to choose their own default search engines and browsers. The government’s response was noncommittal and opts to wait to see what the EU does.
Rec 4 – Investigation monitoring and enforcement issues
The government response to the ACCC’s recommendation on the current investigation, monitoring and enforcement issues is to create a branch of the ACCC that would undertake specific inquiries. This step seems to reduce its proactive stance.
Recs 5 and 6 – Harmonised regulatory framework
The recommendation to harmonise the regulatory framework between technology services, advertising and media are supported in principle. However, the original ACCC recommendations were weak, only suggesting a further inquiry only and a government response. The ACCC pointed to the problem of monopoly exploitation of advertisers, this is not addressed in the government response.
Rec 7 – Codes of conduct governing platforms
The government only supports this in principle.
Rec 8 – Take down powers where copyright is infringed
The government does not support this recommendation and wants to wait until it reviews copyright enforcement more generally.
Rec 9 – Funding for ABC and SBS
The government response states its support for stable and adequate funding for the public broadcasters but then only points to existing forward estimates. There is no new money committed, despite the previous budget cuts to both these organisations.
Rec 10 – Grants for local journalism
The government says that it supports this recommendation but provides no new money.
Rec 11 – Encourage philanthropic journalism
The government rejects this recommendation.
Recs 12 and 13 – Digital media and medial literacy in schools
The government supports improving digital literacy in schools in principle but with consultation. This will not occur until the curriculum review which has been brought forward.
Recs 14 & 15 – credibility signalling and disinformation
The ACCC wants a legally enforceable code to combat disinformation and signal credible sources. The government supports a watered-down version of this, asking the digital platforms to develop a voluntary code.
Rec 16– Updating the Privacy Act
The ACCC recommended strengthening the Privacy Act to better respond to the reach of digital platforms. The recommendation contained six subsections, only one of which was supported by the government – to increase penalties for breaches of the Privacy Act. The remaining subsections were put off, subject to consultation.
Rec 17 – Broader reform of the privacy laws
The government supports this recommendation to expand privacy laws to but then refers to the need “to empower consumers, protect their data and best serve the Australian economy”. Is that code for not offending the platforms? Clearly the ACCC didn't think it necessary to do some sort of trade off against the needs of “the Australian economy”.
Rec 18 – Privacy code for digital platforms
The government supports the implementation of a privacy code only in principle, and once again puts it off till another review of privacy laws is completed.
Rec 19 – A statutory cause of action for serious invasions of privacy
Again, the government defers to the review of privacy laws.
Recs 20 & 21 –Unfair contract terms and unfair trading practices
The ACCC recommended prohibiting unfair contract terms and unfair trading practices. The government rejected these recommendations, ostensibly because there are related reviews under way. The government says “Consultation on a range of policy options to strengthen unfair contract term protections for small businesses will commence from late 2019”. However, the ACCC’s reference explicitly recommends consumers be included, not just small business. Likewise, in the case of unfair trading practices, the government’s response is that “work is underway through Consumer Affairs Australia and New Zealand on exploring how an unfair trading prohibition could be adopted in Australia to address potentially unfair business practices”. This will likely therefore be another generic response, focusing predominantly on economic interests.
Rec 22 – Internal dispute resolution standards
The government supports the recommendation of the creation of a pilot disputes resolution scheme. This would cover such things as consumers getting caught in scams.
Rec 23 – Ombudsman scheme
The government supports the creation of an ombudsman scheme, dependant on the outcome of the pilot dispute resolution scheme.
In Summary
While limited in its scope to consumer issues, the ACCC’s review into digital platforms provided a comprehensive pathway to regulating digital platforms and reimagining a partnership between platforms and traditional media to create a sustainable public square.
By breaking the report down into its component parts, deferring pieces off to other reviews, and, critically, failing to compel Big Tech to change, the government’s response suggests the power of Big Tech to dominate Australian news media will not be disrupted.
Media Enquiries: Peter Lewis 0413 873 285