The future of digital advertising in the post-digital platforms inquiry world (Part 1)
What will be the consequences of the Digital Platforms Inquiry? Stephen von Muenster of von Muenster Legal explains.
Who could imagine weathering this COVID-19 pandemic without the innovations and connectivity brought by digital platforms. The benefits of digital platforms to society have been immense and have also enabled efficient and effective advertising, and facilitated connections with consumers.
However, with this innovation came the ‘dark side’ of this technology where consumer interests have become obfuscated. Following several high profile data breaches, the Australian Competition and Consumer Commission (ACCC) launched its Digital Platforms Inquiry in July 2019. The consequences of this inquiry and the changes to the regulatory landscape will, in our view, be almost be like a COVID-19 for digital.
Part one of this review provides an overview of the Digital Platforms Inquiry (DPI) and follow-ons, highlights the focus on the protection of consumers and their privacy/personal data. Part two will touch on current regulator court actions relating to consumer privacy and data, and what the future may hold.
Overview of the DPI and Follow-on Responses, Reports and Investigations
The ACCC
In December 2017 the ACCC, directed by the Federal Government, was asked to consider the impact of search, social and content on all stakeholders and consequently conducted their DPI.
Digital Platforms Inquiry Final Report
Released on 26 July 2019, the DPI Report spans 600+ pages and confirms law and regulation have not kept pace with technology and commercial practice. The DPI Report places a particular focus on the protection of consumers’ privacy and data, standards of consent, and transparency of data handling.
In this report, a Digital Platforms Branch was recommended and is now established to conduct investigation and prosecution.
The DPI Report has deliberately targeted the ad tech supply chain and interaction of digital platforms, online advertising and ad tech services. The recommendations have ramifications for businesses in programmatic advertising including advertisers, media agencies, ad tech platforms and publishers.
Government Response
On 12 December 2019, the Federal Government responded to the DPI Report with a detailed roadmap for policy and law reform. This is now the beginning of intense investigations, court cases, and law reform that will likely occur over the next decade.
Ad Tech Inquiry
In March 2020, the ACCC released an issues paper for inquiry into the tech stack. Many agencies and advertisers responded, including the MFA. The ACCC seems to be zeroing in on the complexity and opacity of ad tech and ad agency services –stating that “… online display advertising practices certainly warrant some digging”.
The ACCC must provide its final report to the for Federal Government by 31 August 2021, and then there will be new law enacted most likely with transparency as a focus.
Interim Report
On 23 October 2020, the first interim report was released by ACCC. This report focused on consumer protection issues of messenger services including Facebook Messenger, WhatsApp, IMessage and FaceTime.
Consumer Protection – Privacy and Personal Data – Choice, Consent, Control
The ACCC’s view
The ACCC places significant importance on consumer’s being able to make ‘informed choices’ about the handling of their data. They are of the view that the current practice of platforms means that consumers are unable to assess the current and future consequences of providing their data.
In the ACCC’s view the practice of using clickwrap agreements, take it or leave it consents, and bundling numerous consents is very problematic and results in legally questionable consumer consent.
They also consider that Privacy Policies that are too long, complex, vague and difficult to navigate are problematic and furthermore it is an issue that consumers may not be made aware about targeted advertising and third-party data sharing within these Privacy Policies.
Businesses with Privacy Policies that ostensibly protect consumers, but where the policies are not followed in practice, are in the ACCC’s view also problematic.
Generally, it is the ACCC’s position that Australian privacy regulation should be more closely aligned with the the EU’s General Data Protection Regulation’s (GDPR) higher standards of protection.
The OAIC’s view
The Office of the Australian Information Commissioner (OAIC) is the national privacy regulator and has supported many of the ACCC’s recommendations in the DPI, and has suggested additional protections for consumers.
The OAIC believes that the threshold for consumers providing their consent should be aligned with the GDPR’s standards and enable graduated consent (consent to different uses over time) and tiered consent (consent to giving more PI in exchange for different products or levels of services).
The OAIC is of the view that there should be a right to object by individuals for specific data collection purposes, and that there should be compensation under the Privacy Act 1988 (Cth) (Privacy Act) for interference with privacy.
They also challenged anonymous and de-identified data as a PI protection method due to AI and data analytics technologies and think that the law should treat all data as PI.
Part Two of ‘The Future of Digital Advertising in the Post-Digital Platforms Inquiry World’ will explore current Regulator Court actions relating to consumer privacy and data, and what the future may hold.
This piece reflects the content of a presentation given by Stephen von Muenster on 20 November 2020 at Mumbrella 360: Reconnected. For more from visit mumbrella.com.au/pro
Stephen von Muenster is partner and founder of von Muenster Legal.
