Government response to Digital Platforms Inquiry released

Just in time for Christmas, the Government has publicly released its much anticipated response to the recommendations made under the Australian Competition and Consumer Commission’s (ACCC) final report into the Digital Platforms Inquiry on 26 July 2019.

The ACCC’s broad reaching report made 23 recommendations in relation to competition law, consumer protection, media regulation, and privacy law, which we outlined in our article earlier this year.  With data privacy rights and the pervasive reach of digital platforms attracting attention at a global level, it is not surprising to see the Australian Government responding in kind.  Whilst we are yet to see the far-reaching data privacy laws (and follow up enforcement!) that is occurring through the European Union’s General Data Protection Regulation, the Government’s response does point to further regulation and increased penalties for non-compliance.  The Government’s efforts to reign in global digital platforms will likely have a “spillover” effect filtering down to everyday Australian business.

The response

Taking a closer look at the response, the Government confirmed its support for 6 recommendations and support ‘in principle’ for a further 10 of the recommendations.  It also ‘noted’ 5 of the recommendations, with further action requested from ACCC before the Government can commit to further action. In some ways, it is very much a ringing endorsement of the ACCC’s July report.

Interestingly, the Government did not support two (2) particular recommendations, namely:

• Mandatory Australian Communications and Media Authority take-down code to assist copyright enforcement on digital platforms – The Government requires further data and consultation with a broader range of copyright stakeholders, digital platforms and consumer groups to determine the appropriate methods to reduce the availability of infringing materials on digital platforms.
• Tax settings to encourage philanthropic support for journalism – The Government will focus on implementation reforms to the administration of the deductible gift recipient framework before considering further changes.

Both of these areas are particularly challenging and further time would need to be spent before pursuing further.  With an already busy legislative agenda, it may be some time before these recommendations come up again for discussion.

What does the response mean to privacy law?

Having taken steps in recent times to bolster the Privacy Act 1988 (Cth) (Privacy Act) through the introduction of mandatory data breach laws in February 2018, the Government has warmly supported a number of the recommendations to further strengthen protections in the Privacy Act in principle, and the implementation of such recommendations will be subject to further consultation and design of specific measures.

The table below provides a summary of the Government’s response to the recommendations relating to privacy, and the corresponding actions in the Government’s implementation roadmap.

Next steps

While the Government has confirmed its support for the majority of the recommendations in relation to privacy, there will be incremental steps to implement those recommendations going forward, with the substantive results of the review of the Privacy Act to be released 2021.

The Government response indicates a firm willingness and policy agenda to support in principle and execute extensive changes to the Privacy Act.  It is certainly a very different instrument from its original beginnings.  All organisations dealing with personal information will be impacted not just those in the technology space.  If privacy rights have not been a priority for your organisation, we expect that they will in 2020 and beyond.

Authored by:

Dudley Kneller, Partner

Raisa Blanco, Associate