16 December 2019
On 12 December 2019, the Federal Government released its response to Australian Competition and Consumer Commission’s (ACCC) Digital Platforms Inquiry (DPI) findings (Government response). The Government response outlines an extensive roadmap for further policy work in the coming year, which may leave stakeholders, many of whom have already devoted significant time and resources to the DPI itself, feeling exhausted before it has even begun.
The tone of the Government response, released almost two years to the day after the terms of reference for the DPI, is noticeably different from that of the ACCC’s Digital Platforms Inquiry: Final Report (Final Report), with express acknowledgements of the many benefits that digital platforms have delivered to consumers, business and the broader economy. The Government response also strikes an underlying note of caution about the potential for regulatory overreach, emphasising that it is not the role of government to protect domestic businesses from digital competition and the importance of alignment between Australian and international approaches.
That said, over time, the ACCC appears likely to get many of the items on its Christmas list, either through direct implementation of its recommendations by Government, or via further reviews and consultations to be conducted during the course of 2020-21.
In relation to the merger regulation reforms recommended in the Final Report, the Government response is cautious.
The Government response expresses support for digital platforms working with the ACCC to agree a voluntary protocol for the notification of proposed acquisitions. However, a further broad consultation will be held regarding the proposal for new ‘merger factors’ requiring the specific consideration in merger analysis of the importance of potential competitors and the significance of data assets. The Government response notes that the courts may already consider these issues as a matter of course.
There are a number of the ACCC’s recommendations which the Government has merely noted or to which it has adopted a ‘go slow’ approach. A proposal to require changes to search engine and internet browser defaults seems unlikely to be implemented in the foreseeable future, with Government simply tasking the ACCC with monitoring the impact of Google removing default browser and search engine settings from Android phones in Europe. At this stage, the Government does not appear to support the introduction of a ‘right to be forgotten’ in the privacy context. Similarly, it is not proposing to make any further changes to tax settings to fund public interest journalism or increase funding to the ABC and SBS. Copyright enforcement reforms will be subject to a further review late in 2020.
The annexures to the Government response point to a significant underlying program of work to be completed over the course of 2020 and 2021, with between five and ten reviews, consultations and inquiries to be undertaken by various bodies and a range of codes and protocols to be developed. This is likely to be a daunting prospect for stakeholders who have already participated in multiple rounds of consultation as part of the DPI itself.
While the Government responses closes the loop on the Digital Platform Inquiry process, it also marks the beginning of an intense reform and investigative phase that will continue throughout 2020 and beyond.
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