Peter A Clarke

Today the Information Commissioner, the Australian Competition and Consumer Commission (ACCC), Australian Media and Communications Authority (ACMA) and the eSafety Commissioner (eSafety) have released a joint communique regarding their co ordination and priorities for the next year.  The key focus will be digital transparency and algorithms and their impact.  As to what exactly that means in terms of action taken by regulators is not clear.  Both issues are very important in the privacy sphere. 

The communique provides:

Digital Platform Regulators Forum names algorithms, digital transparency and increased collaboration as priorities for 2022/23

The heads of the four members of the Digital Platform Regulators Forum (the forum) met yesterday and have agreed on a collective set of priorities for 2022/23.

Members of the forum are: The Australian Competition and Consumer Commission (ACCC), Australian Media and Communications Authority (ACMA), eSafety Commissioner (eSafety) and Office of the Australian Information Commissioner (OAIC).

The forum’s strategic priorities for 2022/23 include a focus on the impact of algorithms, seeking to increase transparency of digital platforms’ activities and how they are protecting users from potential harm, and increased collaboration and capacity building between the four members.

Through the forum all members have agreed to share information and work together to tackle issues across their traditional lines of responsibility.

Digital transparency

The forum will also focus on issues surrounding digital transparency, which it considers is essential for the protection of Australians.

It will particularly focus on improving transparency of what digital platforms are doing to protect Australians from potential harm, including how consumer data is being handled, and the impact of their activities to address misinformation.

These transparency issues are particularly concerning to the forum, given the power and information asymmetries between digital platforms and users.

Together with measures already in place, the forum aims to further address these transparency and accountability issues through the examination of existing terms and conditions, analysis of public reports, and potential additional regulatory or enforcement action undertaken by forum members where appropriate.

Examining algorithms and their impact

Examining the development and use of algorithms will form a key part of the forum’s work. The forum will look at the impact of algorithms on Australians in a range of areas, including algorithmic recommendations and profiling, moderation algorithms, promotion of disinformation, harmful content, and product ranking and displays on digital platforms such as online marketplaces.

The forum will conduct additional research, engage with industry, meet with expert stakeholders, and conduct workshops throughout 2022/23.

Collaboration

All members of the forum will continue to strengthen their existing relationships by growing collaboration, sharing information, and coordinating on matters relating to digital platforms regulation.

The forum’s collaboration in 2022/23 intends to include joint engagement with stakeholders, submissions and advice to Government, and training and other capability building programs.

The forum is committed to working together to promote proportionate, cohesive, well-designed and efficiently implemented digital platform regulation.

Yesterday’s meeting follows the release of the forum’s Terms of Reference in March 2022 [PDF] and continued work between the forum members over the last year.

The forum also discussed work already undertaken on:

• • the development of codes of practice for digital platforms
  • shared data holdings and opportunities for improved information sharing
  • potential future engagement with international counterparts.

“The ACCC considers that the work of the Digital Platform Regulators Forum is key for our own work on digital platforms, particularly as we are currently reviewing whether there is a need for competition and consumer reform as part of our ongoing digital platforms inquiry,” ACCC Chair Gina Cass-Gottlieb said.

“We look forward to working with our fellow regulators so that digital platforms’ response to public concerns around significant issues like disinformation is more transparent and effective,” ACMA Chair Nerida O’Loughlin said.

“This important forum allows us to focus the combined domain expertise of all four regulators on issues that cut across our respective mandates. I’m looking forward to continuing our work together improving the experience of all Australians online, ensuring we remain at the vanguard of fair, balanced and innovative end-to-end digital regulation. With increased interdependence on technology and online services, Australians deserve no less,” eSafety Commissioner Julie Inman Grant said.

“Personal information is central to data-driven businesses and its protection critical to prevent online harms. We will continue to work closely with other regulators through the forum to advance online privacy protections for Australians, protect individuals from harm in the online environment and ensure the best outcomes are achieved in the public interest,” Australian Information Commissioner and Privacy Commissioner Angelene Falk said.

The terms of reference is a very government document, strong on process.  It provides:

1. Purpose and Scope
The Digital Platform Regulators Forum (DP-REG) is an avenue for Australian regulators to share information about, and collaborate on, cross-cutting issues and activities relating to the regulation of digital platforms. For the purposes of this forum, a ‘digital platform’ includes, but is not limited to, internet search engines, digital content aggregators, social media services, private messaging services, media referral services and electronic marketplaces.
There are a wide range of interventions underway across the Australian Government, including in response to the ACCC’s 2019 Digital Platforms Inquiry Final Report and as part of recent legislative reforms to strengthen Australia’s online safety regime.
Regulators working across these initiatives face many of the same challenges – addressing emerging consumer harms, encouraging innovation while balancing protections, and countering the market power of these large, complex and diverse multinational entities. A critical and overarching focus is considering how competition, consumer protection, privacy, online safety and data intersect in issues that the various regulators consider.
Consistent with the government’s Deregulation Agenda priority area of streamlining overlapping regulation and reducing duplication, the DP-Reg seeks to increase cooperation and information sharing between digital platform regulators on broad areas of intersection, including new and novel regulatory approaches. The DP-Reg also provides members with an opportunity to promote proportionate, cohesive, well-designed and efficiently implemented digital platform regulation.
The DP-REG is not a decision-making body and has no bearing on members’ existing regulatory powers, legislative functions or responsibilities. Collaboration under the DP-REG is intended to be flexible and recognise the limits of each member’s respective regulatory frameworks. Members are not impeded or prevented from engaging bilaterally or outside of the DP-REG on issues related to digital platforms. Issues relating to cyber security or cybercrime are outside of the scope of this body. This Terms of Reference does not create any enforceable rights or impose any legally binding obligations on any member.
2. Membership
The following agencies are members of the DP-REG and primary contact within the member agency responsible for managing the DP-REG relationship is listed below:
– Australian Competition and Consumer Commission (ACCC)
? Primary contact: General Manager, Digital Platforms Branch
– Office of the Australian Information Commissioner (OAIC)
? Primary contact: Deputy Commissioner, OAIC
– Australian Communications and Media Authority (ACMA)
? Primary contact: Deputy Chair, ACMA
– eSafety Commissioner (eSafety)
? Primary contact: Chief Operating Officer, eSafety
By agreement among all existing members, other relevant Australian regulatory agencies may be invited to join the DP-REG or attend meetings on an ad hoc basis.
3. Governance
The DP-REG is led by a rotating Chair, who is responsible for setting the forward agenda, presiding over meetings, and seeking agreement from members on DP-REG activities.
The Chair will be supported by a rotating Secretariat, who is responsible for organising meetings, calling for items, compiling and circulating relevant papers, and taking minutes.
The Chair and Secretariat functions will rotate between members every 6 months. Each member must nominate a senior executive to serve as Chair, as well as a regulatory officer to serve as Secretariat and primary contact for the DP-REG during this time.
4. Meetings
Senior-level DP-REG meetings shall occur once every 2 months, either virtually or in-person. The purpose of these meetings is to update members on relevant developments, share information on cross-cutting issues, and discuss DP-REG activities.
With the agreement of members, the Chair may invite relevant stakeholders to observe meetings or present on issues relating to the regulation of digital platforms. This may include officials from other Australian regulators, portfolio agencies and policy departments, international regulatory bodies, or digital platforms.
The Chair may also seek to convene additional ad hoc meetings as considered necessary.
5. Scope of Activities and Outputs
In addition to regular senior-level meetings, the DP-REG provides opportunities for a wider range of collaboration between members. These include:
DP-REG contact list
Members agree to compile and maintain a contact list of relevant staff working on digital platform issues, to be shared across government and with key stakeholders. This is designed to improve linkages between members at the officer-level and provide greater clarity to digital platforms and other stakeholders on roles and responsibilities across the regulators.
Information and data sharing
Members agree, where permissible, to share data and information regarding their work on digital platform regulation that would be of value to the broader group. This may include sharing relevant proposals or information about upcoming initiatives, submissions made to members’ consultations, submissions made to consultations by members, as well as key research or market analysis materials. Where permissible, The DP-REG could also help facilitate requests for data or information by members.
Enhancing regulatory capabilities
Members agree to seek opportunities to enhance regulatory capabilities across the DP-REG. This could include members sharing experiences, capabilities, resources or staff training opportunities in relation to code-making and, where appropriate, compliance matters or challenges. Other opportunities to enhance regulatory capabilities could include inviting
relevant staff to attend conferences or speaking engagements and encouraging secondments between relevant areas.
Collaboration opportunities
Members agree, in principle, to work collectively on issues of shared interest or relating to a common challenge. Individual members can propose issues to collaborate on in DP-REG meetings for consideration by the broader group. Proposals should be targeted and account for resourcing constraints of each agency. Each party agrees to bear its own costs in relation to the DP-REG.
6. Review
The DP-REG will review its Terms of Reference annually, or as necessary, such as upon changes to membership or new legislative or regulatory priorities relating to digital platforms. Any term of this Terms of Reference may be amended at any time with the written consent of each member.