“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 On 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 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 On default search engines to allow users to choose their own default search engines and browsers. Government non-comital and says we wait to see what EU does.
Rec 4 On investigation monitoring and enforcement issues – government response is a branch of the ACCC that would undertake specific inquiries. Seems to reduce its proactive stance.
Recs 5 and 6 On tech services and advertising and harmonised media regulatory framework are supported. ACCC was weak suggesting further inquiry only and govt response. ACCC pointed to monopoly exploitation of advertisers which is absent from the Govt response.
Rec 7 On codes of conduct governing platforms – Government only support in principle.
Rec 8 On take down powers where copyright is infringed – Government does not support and wants to wait until it reviews copyright enforcement generally.
Rec 9 Stable and adequate funding for ABC and SBS – Government says support but only points to existing forward estimates. No new money there for organisations still suffering past cuts.
Rec 10 Grants for local journalism – Government says support but no new money
Rec 11 Encourage philanthropic journalism – Government rejects.
Recs 12 and 13 Improving digital media and medial literacy in schools – Support in principle but wants consultation etc. Wait until curriculum review. Nothing to see here.
Recs 14 & 15 On credibility signalling and disinformation – ACCC wants enforceable code. Government support in principle but only asking digital platforms to develop a voluntary code.
Rec 16 ACCC wants to strengthen protections in the Privacy Act. This recommendation comes in six parts and only one is supported – to increase penalties for breaches of the Privacy Act. All the others are put off subject to consultation etc.
Rec 17 Calls for broader reform of the privacy laws to more effectively protect consumers. The government supports but 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 Calls for a privacy code for digital platforms. Support only in principle and once again putting things off for the other review of privacy laws.
Rec 19 Would introduce a statutory cause of action for serious invasions of privacy. Again the government would defer to the review of privacy laws.
Recs 20 & 21 Would prohibit unfair contract terms and unfair trading practices respectively. These are rejected ostensibly because there are related reviews under way. So the Government says ‘Consultation on a range of policy options to strengthen unfair contract term protections for small businesses will commence from late 2019’. But the ACCC reference explicitly recommends consumers be included. Likewise in the case of unfair trading practices, government reference is to ‘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 is likely to be a generic thing and again once Treasury gets its hands on it will likely trade of wider economic interests.
Rec 22 Would establish minimum internal dispute resolution standards. The government wants a pilot external disputes resolution scheme. This would cover such things as consumers getting caught in scams.
Rec 23 Would establish an ombudsman scheme but govt wants to wait the outcome of the pilot. Recs 22 and 23 together would seem to suggest a two-stage scheme while the seems to have in mind a one stage scheme. Do they want to avoid the burden on platforms of having to develop their own accountable resolution mechanisms?
In Summary
While limited in its scope to consumer issues, the ACCC platforms review provided a comprehensive pathway to 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, asserting existing finding will do 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.
