ACCC leaves 2019 with more left to do on digital platforms

ACCC chairman Rod Sims has had a better year than his counterparts at APRA and ASIC. Picture: John Feder.

Wednesday marks the two year anniversary of the federal government asking the ACCC to prepare a report on digital platforms.

After the report was completed in July, decisions are still pending.

That is part of the curse of being a regulator - waiting for others to make decisions.

But when ACCC chief Rod Sims has Christmas drinks with the “ACCC mafia” (AKA the Law Council) at Allens’ offices in Sydney, he should be well satisfied with the year’s work.

The lawyers present will certainly grant him a pass mark, in stark contrast to ASIC and APRA, who are still playing catch up from a shellacking in the financial services royal commission.

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On Thursday in Sydney the landmark ACCC criminal cartel case against the ANZ Deutsche and Citibank moves a step closer when past and present JP Morgan executives are quizzed in court about the bank’s immunity from prosecution.

Next week, senior ACCC staffer Marcus Bezzi and colleagues will also be questioned about how they obtained evidence in the case.

A spokesman for Treasurer Josh Frydenberg said ta decision was yet to be made on the ACCC Digital Platforms Inquiry, but said he hoped a decision would be out, as promised, before years’ end.

Reports in The Australian indicate the government supports the establishment of a digital platforms unit in the ACCC and, importantly, the establishment of a shorter review of the ad tech market.

Transparency on the sector has been advocated by News Corp and others so the move would be welcomed by the industry.

But Rod Sims would be disappointed if this was the only one of his more than 20 recommendations accepted.

The ACCC has signalled its own intentions by placing the Google acquisition of Fitbit on formal review and undertaking a world-first legal action against Google’s location data powers.

ACCC enforcement is ultimately the most effective defence against the platforms’ power but Google et al have proved in battling the EC they are adept at delaying the impact of decisions to allow them more time to entrench their market power.

The reality facing the platform powers Google and Facebook is they have moved from being innovators to acquirers and their march through the industry has done little to help consumers, but plenty to boost their own powers to gather data which they can monetise.

The ACCC list of requests from the government included a substantial boost in privacy laws, codes of conduct to regulate behaviour, changes to the competition laws to allow for future effects to be taken into account in competition matters, harmonising media laws to incorporate Google and Facebook, as well as prohibition of unfair contract terms and trading. And on the list goes.

Facebook has opened up the prospect of paying for the use of media content, which is a big step in the right direction if it follows through.

The ACCC and Sims have won plaudits from around the world for the Digital Platforms inquiry but government delays have dented the impact and it seems like other decisions on issues like the TPG-Vodafone court case the report card for Sims would read-a solid year but more work to do.