Australian Competition and Consumer Commission Investigation of Digital Platforms

06 Dec Australian Competition and Consumer Commission Investigation of Digital Platforms

In December 2017, the Australian Competition and Consumer Commission (ACCC) issued a report on the impact that online search engines, social media and digital platforms have on competition in the media. As part of their inquiry, the ACCC recommended that certain measures be taken. Of particular interest to copyright owners are the following:

Recommendation 7: Designated digital platforms to provide codes of conduct governing relationships between digital platforms and media businesses to the ACMA (Australia Communications and Media Authority)

Designated digital platforms should implement codes of conduct to govern their relationships with news media businesses. These codes of conduct should ensure that they treat the news media businesses fairly, reasonably and transparently in their dealings, and should contain commitments such as the sharing of data with news media businesses, and that the digital platforms will not impede news media businesses’ opportunities to monetise their content appropriately on the digital platform’s sites or apps.

The ACCC further recommends that the ACMA should publish guidelines relating to how the code should be developed, and what it should include. The digital platforms that will be required to implement a new code will be designated by the ACMA, and they will also have the task of reviewing and approving the content of the codes. ACMA will have the responsibility to enforce the codes and be given appropriate investigative powers and the ability to impose sanctions for any breaches.

A time limit of nine months to develop a code will be imposed on the digital platforms, and they will also be required to demonstrate they have consulted with the news media businesses. If the time frame is not complied with, it is recommended that the ACMA should create a mandatory standard to apply to the designated digital platform.

Recommendation 8: Mandatory ACMA take-down code to assist copyright enforcement on digital platforms

It is further recommended that a mandatory industry code should be implemented to govern the take-down processes on digital platforms operating in Australia. The suggested code will enable rightsholders to ensure that copy-right protected content reproduced on digital platforms without permission will be removed in a timely fashion.

ACMA will enforce the mandatory code and have the power to enforce appropriate sanctions and penalty provisions. The code’s content should be developed by the ACMA and include a framework that promotes cooperation between rightsholders and digital platforms, including guidance on key issues of concerns for stakeholders such as:

• Cooperation framework: a framework for cooperation between rightsholders and digital platforms to identify and prevent the distribution of copyright-infringing content online.
• Communication: measures should be implemented to facilitate communications between rights holders and digital platforms.
• Timeframes: reasonable timeframes for removing infringing content and time-sensitive content.
• Bulk notifications: the implementation of mechanisms for rightsholders to make bulk notifications to address repeated infringements of the same content and to sanction users who commit multiple or regular infringements.
• Proof of copyright: measures to streamline the process by which rightsholders may prove copyright ownership, particularly in cases where there is joint-authorship.

Recommendation 16: Strengthen protections in the Privacy Act.

16(a)      Update ‘personal information definition’ to clarify that it captures technical data such as IP addresses, device identifiers, location data, and any other online identifiers that may be used to identify an individual.

16(b)     Strengthen notification requirements to require all collection of personal information to be accompanied by a notice, setting out how the APP entity will collect, use and disclose the consumer’s personal information.

16(c)      Strengthen consent requirements and pro-consumer defaults to require consent to be obtained whenever a consumer’s personal information is collected, used or disclosed by an APP entity, unless the personal information is necessary for the performance of a contract to which the consumer is a party, is required under law, or is otherwise necessary for an overriding public interest reason.

Valid consent should require a clear affirmative act. Settings for data practices relying on consent must be pre-selected to ‘off’.

16(d)     Enable the erasure of personal information to requires APP entities to erase personal information of a consumer without undue delay on receiving a request for erasure from the consumer, unless the retention of information is necessary for the performance of a contract, is required under law, or is otherwise necessary for an overriding public interest reason.

16(e)     Introduce direct rights of action for individuals to give individuals a direct right to bring actions and class actions against APP entities in court to seek compensation for an interference with their privacy under the Privacy Act.

16(f)      Higher penalties for breach of the Privacy Act, to increase the penalties for an interference with privacy under the Privacy Act to mirror the increased penalties for breaches of the Australian Consumer Law.