Reception to Government response to Digital Platforms enquiry is decidedly mixed

December 17, 2019 |

It was not coincidental that the Government chose a Thursday less than a fortnight before Christmas to release its response to the ACCC’s Digital Platforms Report (my post about the Response is found here).  It does not appear as cynical as releasing it this week when the country is either frantically trying to extract an extra hour in the day to clear the desk to leave for Christmas with a clear(ish) or enjoying Christmas drinks/lunches/what have you’s. So last Thursday was a good day and a great week to release an at best cautious and limited response which could easily be interpreted through more pessimistic lenses to a very thorough and robust report by a highly regarded regulator.  There is a high level of distraction in the press and any negative stories will have a limited run as the lead up to Christmas will stop them gathering steam.

Notwithstanding the distractions the Response has elicited comment.  The media response has been decidedly mixed and generally sceptical with the Oz, with Digital inquiry: Wriggle room in regulating Big Tech, claiming that the response left a weak and insipid outcome for regulation of social media as a distinct prospect.  Given the Australian’s general distrust of regulation it has come out very strongly in favour of real and effective regulation of Google and Facebook (see Google and Facebook can’t be trusted to do right thing).  Hence the disappointment in its reporting, such  on ACCC digital platforms response: government delay as tech giants move on while Chris Merritt in the Oz is positively apoplectic about both the delay in implementing any reforms and lack of a mandatory code of conduct on Facebook and Google in Google, Facebook off the hook on abuse of power.  The problem with Merritt’s analysis is that his focus is on protecting the IP of media organisations and making the traditional media’s revenue stream a little more secure.  He doesn’t comment on the requirement to improve privacy protections, which is a key part of the Digital Platforms Report.  In the past Merritt has railed against any form of tort of privacy in apocalyptic terms. This cherry picking approach is more self serving and special pleading than careful analysis.

InnovationAus also highlighted the mixed response to the the Government’s response to the ACCC Digital Platforms Report with ‘Heart’s not in it’: Platform review reactions.  The reactions range from scepticism to cautious optimism interspersed with some “opportunities missed” commentary .

The InnovationAus report provides:

The government’s response to the competition watchdog’s inquiry into digital platforms would lead to a “backlog of policy work” heading into the new year, with the Opposition criticising the delays and further consultations that were unveiled.

The Coalition on Thursday revealed its response to the 23 recommendations put forward by the Australian Competition and Consumer Commission earlier this year after its 18 month inquiry into digital platforms.

The government has supported six recommendations in full, supported another 10 in principle, noted five and rejected two outright. It plans to implement a handful of recommendations immediately, and consult further over the next two years on the more contentious areas of reform.

As part of the response, the ACCC has been given a $27 million cash injection to establish a new Digital Platforms Unit, tech giants will be compelled to develop voluntary codes of conduct for dealing with misinformation and media companies, and a review will be undertaken into the Privacy Act.

The Opposition has come out swinging against the response, saying the government’s “heart was never in the reform agenda” or in the ACCC’s inquiry.

In a joint statement, shadow communications minister Michelle Rowlands, shadow treasurer Jim Chalmers, shadow attorney-general Mark Dreyfus and shadow innovation minister Clare O’Neil said the response is an “admission the Liberals have spent six years delaying long-overdue reforms and wasting time and resources on Groundhog Day processes that have gone nowhere”.

“Much of the work the government says they’re going to do now could and should have been done years ago and Australia faces 2020 with a backlog of policy work that has piled up under the Liberals and Nationals,” they said.

“It is deeply concerning that the Morrison government still doesn’t get it when it comes to public interest journalism, particularly in regional areas, which was the core impetus of this inquiry in the first place.

“While the pace of digital change in our economy gathers speed, this government has a track record of going slow and industry, consumers and citizens can hardly be filled with confidence that the regulatory asymmetry, uncertainty and delay will end any time soon.”

The government’s response is “very lack lustre” and too heavily favours the tech giants, Greens Senator Sarah Hanson-Young said.

“Morrison, despite all the chest thumping, has buckled to the lobbying of the tech giants, and failed to deliver protections for Australian journalists and content creators,” Senator Hanson-Young tweeted.

The relevant tech companies responded to the government’s announcement on Thursday through DIGI, an industry group whose founding members include Google and Facebook.

DIGI managing director Sunita Bose said the group will “closely” examine the government’s response and continue to contribute to the ongoing consultations.

“We recognise the importance of the issues raised in relation to maintaining competition in the news and advertising markets, and ensuring consumer privacy is protected online. We’ll be studying the proposals in detail to ensure that the consumer protections are fit for a digital era and that there are no unintended consequences for Australia’s digital future, economic growth and global competitiveness,” Ms Bose said.

The industry organisation also backed the announcement of a review into the Privacy Act.

“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 the company sits,” Ms Bose said.

“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.

“DIGI is supportive of efforts to modernise relevant media laws for a digital era, and 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.”

As part of its response, the Coalition announced there would be a full review of the current Privacy Act, including a focus on the several recommendations made in the ACCC report regarding data privacy.

Communications Alliance chief executive John Stanton said the review needed to consider the impact of these law changes to other sectors, not just for the digital platforms.

“It is important that Australia’s privacy framework be fit-for-purpose in the digital age – but equally vital that any overhaul of the Privacy Act be underpinned by a full analysis of the economy-wide impact of proposed reforms; not just the impact on digital platforms,” Mr Stanton said.

“If the review pushed to include communications metadata as part of the definition under ‘personal information’ under privacy laws, for example, it must be demonstrated that this would create an actual benefit for consumers, and that this benefit would outweigh the enormous potential costs involved.”

The Communications Alliance said it was “pleased” that government had opted against pursuing a mandatory take-down code for assisting in enforcing copyright.

Another ACCC recommendation that the government rejected was for reforms to merger and acquisition laws which would have placed more of an emphasis on whether a company is a potential competitor, and how much data would be transferred as part of a deal.

This is a positive move for the tech sector, StartupAUS chief executive Alex McCauley said, with many companies raising concerns that this would block potential exits.

“The government has taken the views of industry into account in its response on the M&A recommendations, which is heartening,” Mr McCauley told InnovationAus.

“The tech sector made it clear the proposed M&A changes would be harmful, and the response suggests the government heard us and agrees. It’s a positive sign that well-reasoned, constructive engagement from the sector can produce good results.”

The government will next year launch a pilot external dispute resolution scheme, to be assessed over the course of 2020, with a final decision made on whether a Digital Platforms Ombudsman is needed to be made in 2021.

This was welcomed by the Telecommunications Industry Ombudsman (TIO), which is likely to take on the additional role if it is made permanent.

“Ensuring digital platform users have access to a single complaint framework accommodating the converging communications landscape is required and appropriate. The digital platform landscape is complex and the appropriate regulatory and legislative reform will take time to settle,” TIO chair Professor Michael Lavarch said.

“A Digital Platforms Ombudsman pilot with a clear remit to support users already experiencing detriment is a step that can be taken while the broader issues continue to be assessed.”

It is more than a little galling that the Opposition is bleating about the Government’s heart not being in the reform.  It was an ALP Government that was tentative and cautious in implementing the reforms proposed by the Australian Law Reform Commission’s report in 2008 on Privacy. It did not legislate for a statutory tort of interference with privacy.  It could have easily done so.  It had the numbers in the House of Representatives and would have had the support of the Greens in the Senate.  It was a failure of will.  Mark Dreyfus, as Attorney General, on 12 June 2013 issued a reference to the Australian Law Reform Commission to, again, look at the the issue of prevention of and remedies for serious invasions of privacy.  The reference provides, in part:

I, Mark Dreyfus QC MP, Attorney-General of Australia, having regard to:

• the extent and application of existing privacy statutes

 •the rapid growth in capabilities and use of information, surveillance and communication technologies

• community perceptions of privacy

• relevant international standards and the desirability of consistency in laws affecting national and transnational dataflows.

REFER to the Australian Law Reform Commission for inquiry and report, pursuant to s 20(1) of the Australian Law Reform Commission Act 1996 (Cth), the issue of prevention of and remedies for serious invasions of privacy in the digital era.

The reference was not necessary.  The report was good but no better than the 2008 report.  Dreyfus and his predecessor, Nicola Roxon, should have implemented meaningful reforms in 2008 – 2013 period but chose not to.  So it is difficult to take Dreyfus’ complaints without a bucketload of salt. Clare O’Neil the Shadow Minister for Innovation, Technology and the Future of Work has somewhat more credibility to comment and complain.  She is a fresh face and has no history with the issue as a minister.  She has previously engaged on the some of the issues raised by the ACCC and privacy.  That said, that engagement has been at the level of talking theoretically about rather than providing concrete proposals to do something about privacy and other necessary regulations.  For example in her  Closing address to Data Revolution: Consumer Welfare and Innovation in the digital economy, consumer policy research centre conference she stated:

Today, on the subject of data, I want to identify some questions that I think we should be talking about. 

    1. Is privacy a human right? Is that a helpful framework to use to think about legislating with regard to data?
    2. Data protection is a global issue, and most of the companies we might be concerned about are multinationals. How should we think about legislating in the Australia Parliament? What are the costs and benefits of getting out of step with the rest of the world?
    3. How should we think about consent in the context of data collection? What does informed consent mean, especially when privacy notices are complex and almost never read, and many providers exercise monopoly power which arguably make it unrealistic for us to stop using their service? 
    4. How do we think about consent in the collection of data that we cannot opt out of? I am thinking here of e-cities, where I am constantly being filmed, my location is tracked on my phone, my public transport movements on my card. In the 21st Century, should I have the right to hide? 
    5. How should we think about default settings for data collection? 
    6. Who owns data about us? Should I be allowed to exercise control over who it is sold to and how it is used? Should I at least have the right to information about its existence – who has collected data about me, who has aggregated it, and how it is being used?  
    7. If determinations are made about me using data – a credit score, for example – what right do we have to know about those conclusions, and to challenge them?
    8. What kind of behavioural economics techniques should we allow companies to engage in using our data? Should children and other vulnerable people be offered additional protections?  
    9. How do we balance the need for protection for citizens and consumers more generally with the need for us to nurture our critically important digital industries in Australia?  
    10. What needs to happen for us to retain community trust in data collection, so we can ensure that government can put the data it owns to provide better support for Australians?

All the above pertinent points which have been addressed in various ways in overseas jurisdictions and have been the subject of comment in Australian Law Reform Commission and ACCC reports, just to name two sources of inspiration.  Yet she then said:

10 questions I am happy to admit I do not know the answer to—and indeed, I’m not sure anyone does, right now. But the people in this room are going to have that discussion with the community, and find answers to these complex questions over the coming years.

I have zeroed in a little bit on data and privacy today because we don’t have forever to get this right.

Really! If she doesn’t know, or have a good idea about, the answer to the 10 questions she stated or at least discussed the concrete options dealing with each she needs to get out more. And read. Unfortunately this posing big questions and then saying we need to talk about it is an old political sleight of hand which seeks to cloak the commentator as being deep without committing to doing anything. It is all rather twee.

It should go without saying the Information Commissioner welcomed the proposed reforms.  In the world that is Commonwealth bureaucracy the accumulation of power is a good thing.  Much like a few more letters after a worthy’s name or the acquisition of a corner office in a law firm.  The problem is and always has been the failure to use the new fangled weapons in her growing arsenal.  She is distinctly averse to the smell of cordite.  The Commissioner’s statement is a wonderful display of public service bloviation as it provides:

The national privacy regulator has welcomed reforms to strengthen the Privacy Act 1988 to ensure Australians’ personal information is protected in the digital age.

The Office of the Australian Information Commissioner (OAIC) said the Australian Government’s response to the Digital Platforms Inquiry announced today addresses key measures recommended by the Australian Competition and Consumer Commission and submissions from the OAIC.

“The reforms outlined in the Government’s response, including a review of the Privacy Act, will ensure that our regulatory framework protects personal information into the future and holds organisations to account,” said Australian Information Commissioner and Privacy Commissioner Angelene Falk.

“We welcome the government’s continued commitment to introduce higher penalties for privacy breaches and a code of practice for digital platforms.

“We are also pleased to see that the government will seek input on additional privacy measures arising out of the Digital Platforms Inquiry and their application across the economy.

“This reform roadmap is an important step in enabling effective regulation of personal information handling, in line with community expectations for the digital environment and beyond.”

Commissioner Falk said the review is also an opportunity to look at international models in considering innovative solutions to meet our domestic needs.

“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.

“I look forward to working with the Government and other stakeholders through the reform process.”

What exactly does “.the reforms… will ensure our regulatory framework protects personal information into the future and holds organisations to account”  mean?  A regulatory framework doesn’t protect privacy per se.  It certainly doesn’t hold organisations to account.  The regulator does that, using her statutory powers.   The statement “..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” is a Yes Ministerism of the first order.  Unfortunately.  It means little.  In short the Commissioner is cheerleading the Government’ response, with pom poms being waved and legs being kicked all the while not saying much of anything.

Australia is not being well served by either side of the aisle on privacy and data protection.  The media commentary also tends to the self serving.


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