It has been a busy year for the ACCC. Amongst many other matters it has commenced cartel enforcement action, including against high profile financial institutions and bankers, actively enforced the misleading and deceptive conduct provisions of the Competition and Consumer Act 2010 across a wide range of sectors, focussed on enforcement of the unfair contract terms regime to protect small business and consulted on Australia's potentially "game changing" consumer data right regime. 

And now the ACCC has given us a Christmas present, in the form of the preliminary report on the Digital Platforms Inquiry, which is looking at the state of competition in Australia's media and advertising markets and the impact that digital search engines, social media platforms and other aggregation platforms are having on those markets (see our article considering the terms of reference for the Inquiry here).

At over 300 pages in length, the preliminary report might be a little heavy to take to the beach, but it is essential holiday reading. Many of the preliminary recommendations reflect the ACCC's view that both Google and Facebook have substantial market power. Google is seen to have substantial market power in the supply of general search services, online search advertising and the supply of news referral services to news media businesses while Facebook's power is in the supply of social media services, display advertising and (like Google) in the supply of news referral services to news media businesses.

Take a look at some of the headline-grabbing preliminary recommendations

  • A new regulatory authority: The ACCC has recommended the establishment of a new regulatory authority to monitor, investigate and report on the activities of a subset of digital platforms, being those that are vertically integrated and which generate more than a to be agreed threshold of Australian revenue, including by:
    • considering whether the platforms are engaging in discriminatory conduct
    • assessing how those platforms rank news and journalistic conduct and provide referral services to news media businesses.
  • Yet another review: The ACCC proposes a separate, independent review to design a regulatory framework that is able to effectively and consistently regulate the conduct of entities (of whatever type) which perform comparable functions in the production and delivery of content in Australia. One of the areas of focus of such a review is to create guiding principles for an overarching platform-neutral regulatory regime for all media formats and platforms, with common rules applying to each
  • Encroaching into privacy: Although Australia has a separate privacy regulator, the Office of the Australian Information Commissioner, with responsibility for the enforcement of the Australian Privacy Act, this has not stopped the ACCC from making recommendations in the very important area of consumer privacy issues. These include recommendations to amend the Privacy Act to, for example, strengthen notification requirements and introduce a mandatory external audit regime for entities that meet particular thresholds of consumer data collection.

The ACCC will now consult on its preliminary report early in the new year, with the final report to be provided to Government in June. There will be an Australian election before the final report is delivered. Whatever the nature of the Government that receives the final report, it will be considered with interest.

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