Regulatory Update

30 Jul 2019

Government heralds the data revolution and flags privacy crackdown

Last week Federal Treasurer Josh Frydenberg announced “another major step in Australia’s data revolution” as he introduced the Consumer Data Right legislation giving customers of the major banks greater control over their personal data. Then later in the week he released the Government’s initial response to the ACCC’s Digital Platforms Inquiry. A 12-week consultation period will now commence following which the Government will announce its regulatory and legislative intentions.

ADMA was among a select group who took part in an ACCC round-table providing input to the inquiry, following which we made a submission in relation to competition and privacy on behalf of members.

Of the 23 recommendations in the final Digital Platforms report, four will have special significance for ADMA members:
1) A proposal for tougher notice and consent requirements in the Privacy Act
2) A new law covering serious invasions of privacy
3) A new inquiry into competition in the ad tech sector
4) Codes of conduct for dealings between digital platforms and content providers

1) Strengthening Privacy Regulations

The ACCC recommends further legislative changes to strengthen privacy regulations, in particular:

• Updating the definition of personal information to capture any technical data relating to an identifiable individual.
• Strengthening notification requirements around collection of consumers’ personal information either directly or by a third party and accompanied by a notice of the collection.
• Strengthening consent requirements to require that consents are freely given, specific, unambiguous and informed and that any settings for additional data collection must be preselected to ‘off’.
• Requiring organisations to erase the personal information of a consumer without undue delay on receiving a request for erasure from the consumer.

In ADMA’s view, the imposition of additional notice and consent requirements runs the risk of creating ‘consent fatigue’ as consumers grow frustrated with having to provide consent at multiple intervals.  This has been the experience in Europe under their new GDPR rules.

2) Legal action for serious invasion of privacy

The ACCC has proposed that the Government introduce “direct rights for individuals to bring actions or class actions before the courts to seek compensation for an interference with their privacy under the Privacy Act.”

ADMA argues that such measures would dramatically increase business risk and are unnecessary to protect consumers. ADMA’s submission to the DPI challenged the need for new privacy laws, arguing that Australia’s platform-neutral, principles-based approach to privacy is able to meet current and future challenges.

3) Competition in ad-tech

The ACCC proposes to create a new digital platforms branch to investigate how ad tech platforms operate and whether they are engaging in misleading, deceptive or anti-competitive conduct. It is expected that, if adopted by the Government, this new inquiry could take upwards of 18 months to complete. ADMA questions the need for yet another Government agency to monitor Australian businesses, however we will engage with the enquiry as a key stakeholder to defend the interests of data-driven marketing and our members.

4) Codes of conduct

The ACCC has proposed that larger digital platforms be required to provide codes of conduct governing their relationships with media businesses and that these be overseen by the telecommunications regulator, the Australian Communications and Media Authority. ADMA supports measures that will improve transparency, non-discrimination and accountability between content providers and digital platforms. The interests of data-driven marketing are best served by a healthy, competitive mix of channels.

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