Understanding Australia’s new digital regulators forum
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Holding Redlich partner Angela Flannery discusses the new Digital Platform Regulators Forum and how it will address safety issues in the digital space
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THE TERM ‘digital platforms’ is broad, covering not only social media platforms, electronic marketplaces, and internet search engines, but also content aggregators, messaging services, and media referral services. In Australia, these platforms are overseen by four key regulators who deal with everything from online bullying to data protection, competition, general consumer protection, and the spread of disinformation. These key regulators have now established a new forum to collaborate, share information, and tackle emerging issues.
Created with the intention of promoting best practice digital platform regulation, the Digital Platform Regulators Forum (DP-REG) has four founding members – the Australian Competition & Consumer Commission (ACCC), the Office of the Australian Information Commissioner (OAIC), the Australian Communications and Media Authority (ACMA) and the eSafety Commissioner. While the regulators all have different remits, the forum was founded in recognition that they each face similar challenges in the digital platforms space, and occasionally see overlaps in their areas of focus.
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“This forum will provide a very useful opportunity for Australia’s four key regulators to discuss how they are different, the potential for overlap in their roles, and how evolving regulatory frameworks will impact what they do”
Angela Flannery,
Holding Redlich
According to Holding Redlich partner and digital law expert Angela Flannery, the genesis for establishing the forum was the ACCC’s Digital Platforms Inquiry, completed in 2019. The final report from that inquiry found major intersections in digital platforms regulation among competition, consumer protection, privacy, and content regulation. It recognised that regulation of digital platforms must be coherent and consistent and this requires that regulators that monitor and enforce Australia’s laws work collaboratively together.
“It became inevitable that the regulators who have responsibilities for digital platforms would get together and put in place the foundations to adopt a common approach, though of course each regulator retains its independence” Flannery says.
With each regulator agreeing to the terms of reference for the DP-REG, the forum hopes to ensure that a collaborative approach to common issues will be adopted. Each regulator has emphasised that the purpose of the forum is to work cohesively to provide necessary protections without harming innovation. Innovation in digital services and the evolution of digital platforms have provided enormous benefits to Australians – and any regulatory intervention needs to recognise this.
“There is also international precedent for this forum,” Flannery explains.
“The UK has the Digital Regulation Cooperation Forum, which includes a similar set of regulators looking at all things digital. Like the DP-REG, this UK forum was established to ensure a greater level of cooperation between regulators with responsibility for online platforms, including by pooling resources and working together on matters of mutual importance. For example, one of the projects that UK forum is undertaking at the moment is a ‘horizon-scanning program’ to build their collective knowledge of the digital innovations that are coming through the pipeline so those regulators can all start with the same factual framework when looking at problems that might arise in the future. I’m sure that precedent influenced the Australian regulators here.”
“That work is being undertaken as part of the Digital Platform Services Inquiry, and recommendations are due to be provided to the government in September 2022,” Flannery says.
“Although the ACCC has made clear that consultation is looking only at regulation within its competition and consumer protection remit, it will be important for the ACCC to consult closely with its fellow regulators in determining what additional powers it might need.”
The ACCC is the largest and best-funded regulator of the four DP-REG members, so Flannery says it is not surprising that, to date, it has had the biggest role in taking enforcement action against a range of digital platforms, both international and domestic. The DP-REG will help the other regulators work with the ACCC to define more clearly the areas where the other regulators have responsibility.
“From the ACMA’s perspective, its area of responsibility for digital platforms is around disinformation online, particularly in oversighting the voluntary Code of Practice on Disinformation and Misinformation,” she explains.
“The Minister for Communications announced in late March that the government will provide new regulatory powers in this area to the ACMA. That segues into the eSafety Commissioner’s remit, who is responsible for regulating online harms – not only, for example, children being bullied and harassed online, but also online harmful content,” she says. The eSafety Commissioner has, in fact, recently been given an expanded regulatory scope under the Online Safety Act 2021.
“The Australian forum creates a foundation to allow these regulators to work together to proactively look at future developments in technology and digital platforms, and to take steps to provide forward-looking advice to government to limit the risks that those developments may create”
Angela Flannery,
Holding Redlich
“Those areas are typically quite different to what the OAIC and the ACCC deal with in relation to digital platforms, Flannery says.
“In the case of the overlap between the OAIC and the ACCC’s remit, there is potential scope for intersection of their roles in relation to the collection of personal information online.”
In the past, the ACCC has taken enforcement action against digital platforms in relation to online data collection practices. That action has had, and will continue to have, significant implications for the online collection of personal information by all businesses, an area that is also within the regulatory remit of the OAIC. Flannery says putting a framework in place that allows the ACCC and OAIC to work together in that space therefore makes sense.
“This forum will provide a very useful opportunity for Australia’s four key regulators that have a focus on digital platforms to discuss how they are different, the potential for overlap in their roles in regulating this space, and how Australia’s evolving regulatory frameworks will impact on their priorities and what they do,” Flannery adds.
“It certainly has the potential to provide good outcomes not only for Australian consumers but for Australian businesses, as there will be more alignment between the regulators and a consistency of regulatory approach and advice provided to the Australian government on required regulatory powers. For example, if a business complies with the requirements of the Privacy Act in relation to its privacy policy, it shouldn’t get a knock on the door from the ACCC saying that policy does not comply with the Australian Consumer Law.”
Reflecting on the ultimate goals of the forum, Flannery says there has been an “amazing” amount of work done by each of the regulators over the last couple of years in relation to digital platforms, including, for example, the work of the ACCC regarding the mandatory news media bargaining code, which resulted in Australian media companies, for the first time, being paid for news content by Google and Meta.
“However, as I mentioned before, the forum should be forward-looking and have a focus on emerging issues – the government and regulators shouldn’t wait for material problems to emerge but should look at whether proactive action may be taken early to avoid harms," she adds.
“I also hope that the regulators are very transparent in relation to the work that the DP-REG does. The terms of reference do not require any public reporting of the outcomes of the collaboration of the regulators, but it would be helpful if there was public visibility of this work.
“And if I could have one final wish, it’s that the Australian Securities & Investments Commission [ASIC] be invited to join the forum,” Flannery concludes.
“Digital platforms are increasingly engaged in financial markets activities, including but not limited to allowing advertising for financial products and providing contactless payment services. Therefore ASIC – and also the Australian Prudential Regulation Authority – will have an increasingly important role in digital platforms regulation. The ACCC has, in fact, recently commenced proceedings against Meta for misleading and deceptive conduct relating to scam crypto advertising. That is an area of overlap with ASIC.”
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Angela Flannery: Areas of expertise
Information technology
Telecommunications
Media
Privacy and data protection
Angela Flannery: Areas of expertise
Information technology
Telecommunications
Media
Privacy and data protection
In a recent example, the ACCC was successful against Google in the federal court, which found in early 2021 that the information Google provided to certain Australian consumers about its location data collection practices was misleading and deceptive. The actions of Google that were misleading and deceptive may also have breached the Privacy Act.
“There are other online data collection areas where there will be overlap between the OAIC and the ACCC,” Flannery explains.
“One interesting example is in the area of ‘dark patterns’ – that is, the way platforms can be set up to encourage people to take certain actions, like consenting to sharing more personal data than consumers would typically wish. The ACCC sees this as an area in which it has a consumer protection role, whatever the type of dark pattern, and notwithstanding that this practice is unlikely to constitute misleading and deceptive conduct. It is
equally an area – at least where dark patterns are used to encourage greater personal information sharing – where the OAIC should be active.
Angela Flannery: Awards
Who’s Who Legal Global Leader
Lexology Client Choice 2020
Telecoms and Media 2020
Telecoms & Media
Angela Flannery: Awards
Who’s Who Legal Global Leader
Lexology Client Choice 2020
Telecoms and Media 2020
Telecoms & Media
