Competition and Consumer Watchdog Spurs Australian Privacy Changes

Abstract

Competition and consumer laws are becoming a major element of data privacy protection in Australia, particularly in relation to digital platforms, often in advance of similar developments in other parts of the world. The country’s competition regulator, the Australian Competition and Consumer Commission (ACCC), has been at the centre of these developments for the last three years. This article discusses four related developments: (i) The ACCC is suing Google for misleading conduct in respect of its location data practices, alleging that certain Google account settings made the misleading representation that users had opted out of location data retention. (ii) The ACCC is also suing Google for misleading conduct in respect of its communications to consumers about its aggregation of personal information from its various services (Google search engine, YouTube etc) with data collected via third-party websites, for commercial purposes including advertising. (iii) The ACCC has raised preliminary concerns about Google’s acquisition of Fitbit, because of the potential anticompetitive effects of merging personal information collected by the two businesses. (iv) The Australian government is proposing to enact a raft of reforms to Australia’s out-of-date privacy laws (an Issues Paper has been released), and to consider further reforms, resulting from ACCC recommendations in 2019, reforms which will give the ACCC an ongoing role in regulating privacy and digital platforms. The ACCC is also the key player in another challenge to the predominance of Google and Facebook in the Australian digital landscape, because it is implementing a government-supported mandatory code which will require the platforms to pay for displaying Australian commercial news content on their platforms. (Legislation is now before the Australian Parliament.) What is the potential cumulative effect of these developments on surveillance capitalism in Australia?