Next steps for the ACCC in relation to digital platforms

For an 18 month period from late 2017, the Australian Competition and Consumer Commission (ACCC) undertook its ground breaking Digital Platforms Inquiry. The Australian Government published the Final Report from that Inquiry in mid-2019 and, following a further round of public consultation, the Government then released its response to that Final Report, the “Regulation in the digital age Government Response and Implementation Roadmap for the Digital Platforms Inquiry”^[1] in December 2019.

The Government largely adopted the recommendations of the ACCC from its Final Report. It included in its list of proposed “immediate” actions that a new ACCC Digital Platforms Branch would be established to monitor digital platforms and that this Branch would be directed to commence an adtech inquiry. Reflecting these two agreed actions, on 15 February 2020 the Australian Treasurer issued a media release announcing the Terms of Reference for the ACCC to undertake two separate inquiries, an inquiry into Australia’s ad tech services markets and a second, longer term inquiry into Australia’s digital platform services markets more broadly. 

The ACCC’s adtech inquiry

The terms of reference for the adtech inquiry are set out in the Competition and Consumer (Price Inquiry – Digital Advertising Services) Direction 2020 (Cth).

The adtech inquiry is being undertaken under section 95H of the Competition & Consumer Act 2010 (Cth) (CCA) which is the same process that applied for the Digital Platforms Inquiry. As this is the case, as applied for the Digital Platforms Inquiry, the ACCC will have compulsory powers to require parties to provide information in response to its questions related to the inquiry. 

The interim report from this inquiry is due to be released by the ACCC by 31 December 2020 and the final report must be provided to the Government by 31 August 2021. The ACCC’s first Issues Paper will not be released until March 2020 – the ACCC will then consult in relation to that Issues Paper.  

The key issues that the ACCC is required to look at in the adtech inquiry are:

1. The competitiveness and efficiency of markets for the supply of digital advertising technology services and digital advertising agency services
2. How competition in the markets referred to in subparagraph 1 impacts on competition in the market for the supply of digital display advertising services
3. The availability to advertisers, publishers and other market participants of information on activities in the markets referred to in subparagraph 1
4. The distribution of digital display advertising expenditure between publishers, digital advertising technology services providers and advertising agencies
5. The concentration of power in the markets referred to in subparagraph 1 and the digital display advertising market
6. Auction and bidding processes undertaken in digital display advertising services
7. The impact of mergers and acquisitions in the markets referred to in subparagraph 1
8. The behaviour of suppliers in the markets referred to in subparagraph 1, including in particular the services offered and the terms on which those services are offered
9. Whether the corporate structures of suppliers, or contractual arrangements between suppliers and customers, in the markets referred to in subparagraph 1 and the digital display advertising market have a negative effect on competition or informed decision making in those markets
10. Whether all of these services are being performed to the satisfaction of all market participants.

Digital platforms services inquiry 2020-2025

The ACCC has also been directed to undertake a five year inquiry into digital platforms to look at anti-competitive behaviour. The Terms of Reference for the ACCC’s digital platforms services inquiry are contained in the Competition and Consumer (Price Inquiry – Digital Platforms) Direction 2020 (Cth). 

The first report for this inquiry is due on 30 September 2020. The ACCC is required to report every six months thereafter with the final report due to be given to the Treasurer by 31 March 2025.

Like the adtech inquiry, and the Digital Platforms Inquiry, because this inquiry will be undertaken under section 95H of the CCA, the ACCC will have compulsory powers to require parties to provide information in response to its questions related to the inquiry. Given the broad scope of the inquiry, as discussed below, and its long duration, it is likely that the grant of these compulsory powers will be seen as somewhat controversial.

Notwithstanding the name given to the Terms of Reference, this inquiry is not limited to pricing. This five year inquiry will primarily look at the following categories of digital platform services:

• internet search engine services, not limited only to Google Search but to cover all general search services and other specialised search services
• social media services
• online private messaging services (text, audio and visual messaging)
• digital content aggregation platform services
• media referral services provided in the course of providing one or more of the services listed above
• electronic marketplace services (this covers any internet service that facilitates the supply of goods or services between suppliers and consumers, but excludes telecommunications carriage services and payment processing services).

The inquiry will also consider digital advertising services provided by digital platform services providers and data collection, storage, supply, processing and analysis services provided by either providers of digital platforms services or “data brokers” (with data broker being defined as a supplier who collects personal or other information on persons, and sells this information to, or shares this information with, others). 

Matters to be considered by the inquiry include:

• the intensity of competition in markets for the supply of digital platform services, with particular regard to the concentration of power, the behaviour of suppliers, mergers and acquisitions, barriers to entry or expansion and changes in the range of services offered by suppliers of digital platform services
• the practices of individual suppliers in digital platform services markets which may result in consumer harm including supplier policies relating to privacy and data collection, management and disclosure
• market trends that may affect the degree of market power, and its durability, held by suppliers of digital platform services;
• changes over time in the nature of, and characteristics and quality of, digital platform services arising from innovation and technical change
• developments in markets for the supply of digital platform services outside Australia.

The ACCC has not yet released any details of how it will undertake this five year inquiry though, together with the adtech inquiry, it is assumed this will be the focus of the ACCC’s new Digital Platforms Branch.

Ongoing focus on digital platforms

Both of these inquiries demonstrates that the behaviour of digital platforms, not limited only to Google and Facebook, will be an area of focus of both the ACCC and the Australian Government for a long period of time.

^[1] See:  https://treasury.gov.au/sites/default/files/2019-12/Government-Response-p2019-41708.pdf

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