G+T hosted a discussion with Rod Sims, Chairman of the ACCC and Dr Katharine Kemp, Senior Lecturer, UNSW, and G+T Competition and Regulation Partner Elizabeth Avery, moderated by Andrew Low, exploring the broader themes of the Final Report and their impact on the agenda for regulatory reform and enforcement.

The event held at G+T Sydney listened to a keynote speech from Mr Sims, followed by a lively discussion on the digital environment and exploring the themes relevant to the business community and the direction for the ACCC going forward.

Mr Sims described the Digital Platforms as “being big and having and using market power” – which he recognised was not a competition concern in and of itself, provided the power was not misused.  He recognised that “we are at the start of this journey, and we're not at all trying to play down the enormous benefits that platforms have brought us, but that doesn't mean you shouldn't deal with the harms”. Furthermore, he considered that unless we address the potential harms, there will be a decline in trust in the use of platforms and the provision of data by consumers. 

The Digital Platforms Inquiry (DPI) attracted a lot of media and business attention due to the breadth of the Inquiry which took a broad look at the digital platforms as both a competition and consumer agency. He stated that “data in itself immediately draws in competition, consumer and privacy issues. If you’re not looking at them in a holistic way, you’ll miss the prize. You’ll misunderstand what’s going on”. 

He urged the platforms to take responsibility for the information presented on platforms, including to ensure information on platforms was not wrong or misleading. Governments also played a role to monitor accuracy of information and stressed that “continual monitoring [of platforms] is essential”. 

He observed that our privacy laws are out of date and difficult to enforce given their principled nature, and required an overhaul.  In contrast, he considered that Australia’s current competition law was sufficient to address any competition concerns that may be raised.

G+T Partner Elizabeth Avery stressed that international coordination and convergence of regulatory approaches was critical as problems with global dimensions require us to think of global solutions. On the issue of transparency, Elizabeth commented that “one recommendation was to introduce a monitoring regime to understand how data is being collected and used”. However, she also advised that we “need to be careful that we don't make the monitoring so onerous that it shuts down a vital part of the economy”.

Elizabeth noted that it was important to remember that digital platforms had delivered many valuable procompetitive benefits to the economy and many great products that consumers enjoyed.  While acknowledging the significant role that competition, consumer protection and privacy laws had to play in regulating the digital economy, she cautioned against the penumbra of a potential unfair conduct prohibition, which may result in significant uncertainty, subjective judgement on fairness, and cautioned that with a new unfair practices prohibition, we need to ensure that we don’t erode the development of our laws because “everything is lumped into the bucket of unfairness”.

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