Platforms must be classified as publishers and take on responsibilities

There was a sense of the Dunkirk spirit last week with the publication of the submissions to the digital platforms inquiry.

Of all the amazing stories that emerged from the six long years of World War II, none is more iconic or emotive than Dunkirk. In the darkest hour of WWII some 330,000 Allied troops were forced back to the northern French port of Dunkirk by Hitler’s troops where they awaited a final and almost certainly futile battle.

And then, in a remarkable reverse that would not only rescue the troops but also reverse the course of the war, a flotilla of hundreds of small and large boats of all descriptions set sail from the British coast. Almost all the troops were saved and the “miracle of Dunkirk” with its calm seas and protective mists was taken by the Allies as a sign that God was, very clearly, on their side.

There was a sense of the Dunkirk spirit last week with the publication of all the submissions to the Australian Competition & Consumer Commission’s Digital Platforms inquiry. The inquiry, set up by Scott Morrison, had been charged with investigating the power and impact of giant digital platforms on the media industry in Australia. Rather than 800 boats, there were 57 different submissions. But their variety and defiance in the face of the commercial might of Google and Facebook evoked the same sense of a coming together of big and small in a final, desperate attempt, to do something about the tightening grip of digital platforms in this country.

Advertisers such as Medibank bemoaned the lack of “realistic alternatives” to Google and linked that dominance to increasing costs for these services. Smaller companies made their voice heard too. The owner of Queensland-based Food4U, Kate Baranyi, wrote an impassioned letter pointing out that as prices for Google’s advertising services had gradually increased she had ultimately been “squeezed out” of search advertising completely.

The industry body, the Australian Association of National Advertisers, pointed the 75 per cent share of all digital marketing Google and Facebook now enjoy, and that both companies defiantly and non-transparently measure their own impact with limited third-party verification. It was a sentiment echoed by the Commercial Radio Network, which used its submission to note that digital platforms “do not properly measure the efficacy of online advertising” but that there was no way to hold these platforms to account or force transparency upon them.

And then there were the claims from media owners and publishers. News Corp, the publisher of this newspaper, made it clear that the current practices of Facebook and Google had the potential to “profoundly damage the creation, distribution and consumption of news and journalism in Australia”. For once Fairfax was in complete agreement, pointing to its own regional and community mastheads and their struggle to survive in the face of digital platform dominance.

While there is no doubting the legitimate concerns and complaints of the disparate submissions, two questions now hang over this inquiry. First, what exactly will the ACCC impose on digital platforms when it publishes its recommendations at the end of the year? Second, will the big platforms comply with any impositions?

In terms of the first question there seems to be one overriding objective for the ACCC’s recommendations and it was reflected across many of the submissions to the inquiry. The past decade has witnessed the emergence of the term “platform” as an alternative to that of “publisher”. Increasingly powerful digital players like Google, YouTube, and Facebook have made it clear that as platforms they believe they only operate the pipeline and should not be held directly responsible for the content that their users subsequently inject into those pipelines.

This single distinction enables digital platforms to evade most of the responsibilities that other media companies continue to uphold. Everything from copyright law to editorial responsibility to fake news to brand safety can all be traced back to the fundamental exception that digital platforms are not held responsible for the content from which they make billions in advertising revenues. Indeed, much of that content comes from the very media publishers that now struggle with the growing power of the platforms. A level playing field in which the term platform becomes equal to publisher must be the first priority for the inquiry.

Whether, to the second point, any of the digital giants actually conform to any stipulations from the ACCC is a different question. While national regulators still wield enormous domestic power, as evidenced by the collective frenzy gripping major financial institutions during the ongoing royal commission, the reach and influence of Australian lawmakers over international digital platforms like Facebook, Google, Amazon and Apple is far more questionable. The sheer size and global dominance of these firms could relegate Australian government sanction to a non-issue. Google owns 95 per cent of search. Facebook owns the top four most downloaded apps on the planet. Amazon is the second-biggest company in the world and is worth a trillion Australian dollars. Apple, the biggest, is worth $US100 billion more than that.

On every issue from copyright to corporate tax to privacy the digital platforms are so huge they are increasingly a law unto themselves. The British government has tried, and failed, to get Facebook chief executive Mark Zuckerberg to testify in front of it. Zuckerberg has simply ignored the order. The European Union is busy preparing its new General Data Protection Regulations for launch later this month and Google is quickly forcing all its partners to make it a co-controller of their user data to negate much of the legislation’s intended controls. In Seattle, where the local government is bringing in a new tax on big employers to help reduce homelessness in the city, Amazon has announced it will simply move its HQ and the 7000 jobs connected to it from the city unless it is exempted from the tax.

In December, when the results from the inquiry are published, we will get the answer to both these questions. Will the ACCC finally bite down hard enough on the digital “platforms”, and will those platforms respond appropriately?