Dianne Beer and Eva Lu

The ACCC Takes a Bite of the Privacy Pie (Part 2)

Dianne Beer and Eva Lu

23 May 2019

Confidentiality and Privacy

Eva Lu, Associate at Thomson Geer, provides a summary of the privacy and data related recommendations from the ACCC’s Digital Platform Inquiry Preliminary Report.

The Australian Competition and Consumer Commission (ACCC) Preliminary Report on the Digital Platforms Inquiry (Report) contains 11 preliminary recommendations and nine areas for further analysis.

Part 1 of this two part series focused on the privacy and data related preliminary recommendations in the Report. This Part 2 will focus on the privacy and data related areas for further analysis outlined by the ACCC in the Report as well as noting the legislative reform already suggested by the government in anticipation of the ACCC’s final report to be released on 3 June.

Areas for Further Analysis

The ACCC identifies four areas for further analysis that may have an impact on privacy.

1. A digital platforms ombudsman

The ACCC is considering whether an ombudsman could be established to deal with complaints about digital platforms from consumers, advertisers, media companies, and other business users of digital platforms. The ACCC notes that it does not intend for any of the functions of such an ombudsman to duplicate those proposed elsewhere for a regulatory authority.

The OAIC currently handles complaints in relation to privacy and should continue to do so. If the recommendation is implemented, any potential areas of overlap between the OAIC and the new ombudsman would need to be reviewed to avoid duplication, minimise confusion, enable streamlining of resources and provide clarity of the complaint avenues, processes and expected outcomes for consumers.1

2. Deletion of user data

The ACCC is considering whether there should be an explicit obligation to delete all user data associated with an Australian consumer once that user ceases to use the digital platform’s services or whether user data should automatically be required to be deleted after a set period of time. This is said to prevent open ended retention of data without requiring a user to actively request the deletion. It is, however, unclear how such an additional obligation would override or complement APP 11.2 of the Privacy Act which requires an entity to destroy or de-identify information that the entity no longer needs for any purpose.

3. Opt-in targeted advertising

The ACCC is considering whether consumer consents in relation to targeted advertising should be further strengthened by prohibiting entities from collection, using, or disclosing personal information of Australians for targeted advertising purposes unless consumers have provided express, opt-in consent. The ACCC acknowledges that this proposed recommendation is likely to have a significant impact on businesses in the advertising services markets.2

4. Prohibition against unfair practices

The ACCC is considering whether there is a need for a general prohibition against the use of unfair practices in the ACL. Such a prohibition could deter digital platforms and other businesses from engaging in conduct that falls short of societal norms, but which is not currently captured under the ACL. Whether an objective standard for “unfair practices” or “societal norms” can be determined is unclear.

Next Steps

Submissions in response to the Report have closed and can be located at https://www.accc.gov.au/focus-areas/inquiries/digital-platforms-inquiry/preliminary-report-submissions. The ACCC’s final report is due by 3 June 2019.

The Attorney-General and Minister for Communications and the Arts announced in March 2019 plans to amend the Privacy Act. The media release can be located at: https://www.attorneygeneral.gov.au/Media/Pages/Tougher-penalties-to-keep-australians-safe-online-19.aspx. Legislation is expected to be drafted for consultation in the second half of 2019 and will incorporate the findings and recommendations of the ACCC’s final report.

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Resources

1 Law Council of Australia, Submission to the Australian Competition and Consumer Commission, Digital Platforms Inquiry – Preliminary Report, 14 February 2019, 19.

2 Australian Competition and Consumer Commission, Digital Platforms Inquiry, Preliminary Report (2018) 230.