“The ACCC is at the forefront of the global debate on the implications and consequences of digital platforms for competition and consumers,” Herbert Smith Freehills’ competition partner Sarah Benbow said.

“In recent weeks both the US Department of Justice and UK Competition and Markets Authority have followed the ACCC’s lead and launched similar digital platform inquires.”

Ms Benbow noted the ACCC “has more than just the digital platforms in its sights”, recommending that it conduct an inquiry into ad tech services and advertising and media agencies to determine whether any competition or efficiency concerns exist in that supply chain.

Privacy regime overhaul

Commenting further on the report, Herbert Smith Freehills’ head of privacy and data protection Kaman Tsoi said the ACCC – in consultation with the Office of the Australian Information Commissioner (OAIC) – “has proposed an overhaul of Australia’s privacy regime with the aim of placing consumer rights at the centre of data-related regulation, to address the ACCC and OAIC’s concerns that Australians are not fully aware of or do not feel empowered to exercise their privacy rights, particularly online”.

“The ACCC’s wide reaching privacy-related recommendations are focused on economy-wide concerns raised by current data practices and are likely to increase the regulatory burden and costs for all businesses – not just digital platforms,” he said.

In addition to reforms specific to digital platforms, the ACCC has recommended amendments to the Privacy Act which would bring the Act closer to the EU’s General Data Protection Regulation (GDPR), Mr Tsoi explained.

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The recommended changes, he said, are intended to enable consumers to make more informed decisions and have greater control over their personal information.

Greater consequences

In addition to the above, the ACCC final report recommends that higher penalties be instated for those companies putting consumers at risk of privacy violation.

According to Herbert Smith Freehills’ special counsel Annalisa Heger, the higher penalties and a broader overhaul of privacy and data-related regulation will ensure that the law “continues to effectively protect consumers in the digital economy, including a review of whether current exemptions for small businesses, employers and political parties remain appropriate”.

Further, Ms Heger noted the ACCC had found both Facebook and Google have “substantial market power” in a number of markets, and found they have “substantial bargaining power” in their dealings with news media businesses in Australia.

“The ACCC has highlighted what it sees as the ‘special responsibility’ of firms with market power under competition policy and law, that smaller businesses do not have,” she said.

“We see the ACCC’s language as reflecting a new emphasis on the role and restrictions on firms with market power.”

Going forward

So what’s next now that the final report has been released?

According to Ms Heger it’ll be a wait-and-see process, with the federal government announcing it will undergo a 12-week consultation process to look over the recommendations before delivering its final response to the ACCC’s report later this year.

“The Federal Government has already accepted the ACCC’s finding that reform is required, but we will need to wait to see how the Government intends to implement any changes,” she said.

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