The ACCC’s last week released its fourth report of the Digital Platform Services Inquiry. The report focuses specifically on general online retail marketplaces that display products to consumers (i.e. marketplaces that require transactions to occur on the platform (such as ebay) but not platforms that direct consumers to third party platforms (such as Gumtree)), and whether they are promoting fair and competitive markets for consumers and sellers. As these online marketplaces also provide advertising services, the report makes a few interesting points that are relevant to the digital advertising industry more broadly:
- The ACCC reiterates its concerns in relation to the collection of large amounts of consumer data by online platforms, in this case, online marketplaces, and that this ‘may not’ align with the privacy preferences or expectations of consumers. It notes that consumers should be given both sufficient information and adequate control to allow them to make informed choices about what data is collected and used by the digital platform.
- The ACCC notes and makes supportive comments in relation to the Attorney General Department’s review of the Privacy Act, which was part of the Australian Government’s response to the DPI Final Report; as well as the Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021 which would introduce a privacy code to impose additional privacy requirements on online platforms that collect a high volume of personal information or trade in personal information. It notes that the Code and any reforms resulting from the Privacy Act review are expected to address some of the specific privacy concerns that arise from a lack of consumer awareness or control over digital platforms’ data practices.
- The ACCC reiterates its support for (its own) previous recommendations to address these concerns, in particular it is worth noting its support for the following:
- the introduction of a prohibition on certain unfair trading practices to cover harmful conduct that is currently not captured by existing provisions of the Australian Consumer Law.
The ACCC notes that this type of prohibition may help address issues raised in relation to data collection and use, as well as potential dark patterns or nudges on online marketplaces (which may confuse users, make it difficult for users to express their actual preferences, or manipulate users into taking certain actions). It notes the scope of such a prohibition should be carefully developed such that it is sufficiently defined and targeted, with appropriate legal safeguards and guidance.
- making unfair contract terms illegal (not just voidable), and civil pecuniary penalties should be available for contraventions.
The ACCC notes that a bill was introduced in February 2022 which would make such changes to the unfair contract terms provisions in the Australian Consumer Law. If this change was adopted, the report considers this would provide a significant deterrent to businesses (including but not limited to online marketplaces) from using unfair terms in their consumer and small business agreements.
- that digital platforms comply with minimum internal dispute resolution requirements and that, should a dispute not be resolved internally, an ombudsman scheme be established to resolve complaints and disputes with digital platform providers.
In relation to all three recommendations the ACCC notes its continued support for these and makes clear that it considers they should apply to online marketplaces as well as other previously identified digital platforms.
For IAB members with online marketplace businesses or representing businesses that have products available via marketplaces, it is also worth noting that in relation to online marketplaces the ACCC found:
- online marketplaces have a high level of control and involvement in transactions between consumers and sellers on their platforms.
- none of the online marketplaces has reached a dominant position in Australia, unlike in other countries, but that there is potential for the market to tip in favour of a single dominant marketplace.
- In its fifth Digital Platform Services Inquiry report, the ACCC is considering whether Australia needs a new regulatory framework to address competition and consumer concerns with digital platform services more broadly. Any such framework should be able to be applied to online marketplaces as well.