Calls for holistic reforms to digital platforms from Australia’s competition regulator

Our guest correspondent, Tyrone Berger, reports on a potentially path-breaking initiative from Australia regulating the regulation of digital platforms:

Both in Australia and elsewhere (here, here and here), questions are being asked about the impact of digital platforms, such as Google and Facebook, in relation to alleged anti-competitive conduct, privacy abuses, and copyright regulation. The latter is of particular interest to fun-loving Kats!

Australia’s competition regulator, the Australian Competition and Consumer Commission (ACCC), has just handed to the Government for its consideration over the coming months a report containing broad and far reaching reforms regarding the regulation of digital platforms. If implemented (in a manner similar to that outlined in the report), the changes will significantly affect the way that digital platforms conduct business in Australia.

More significantly, perhaps, is that this public inquiry is the first of its kind – so its findings can be expected to be closely examined by other regulatory agencies around the world.

Backstory

On 4 December 2017, the then Treasurer (and now Prime Minister), the Hon Scott Morrison MP, directed the ACCC to conduct an inquiry into digital platforms. Over 120 submissions were received in response to the Preliminary Report, which was published on 10 December 2018. The final report was published on 26 July 2019 after having been provided to the Government. The inquiry looked at the impact that digital search engines, social media platforms and other digital content platforms are having on competition and advertising markets.

Code for (copyright) Kats

Under Australia’s Copyright Act 1968, there is no express take-down mechanism: instead, digital platforms such as Twitter, Google, Facebook argue in their submissions (here, here and here) that they already implement a variety of processes for rights holders to request the removal of infringing content. However, other submitters to the inquiry indicate that existing processes often do not enable effective, adequate reporting or removal of infringing material. For instance, as noted by the Australian Copyright Council, specifing that (here)--

Take-down processes will provide limited assistance where certain content, such as live music concerts or sporting matches, are not dealt with immediately.

More generally, rights holders note that there can be significant delays and costs associated with requesting take-down notices from digital platforms under the current arrangements. These concerns go to the fact that digital platforms do not have clear policies or time frames for the removal of infringing content. A key issue for rights holders in this regard is the significant time and resources that they must expend in monitoring online content to protect their copyright. Another issue on which rights holders and digital platforms have diverging views is the resurfacing of similar infringing content after a report has been made.

The ACCC, in its inquiry report, considers that enforcement could be aided by a mandatory take-down code that provides clear standards surrounding the withdrawal of copyright-infringing content on digital platforms. Among its 23 recommendations, the ACCC proposed (Recommendation 8) a take-down code to assist copyright enforcement on digital platforms, which would be administered by the Australian Communications and Media Authority (ACMA).

Clear as day?

The ACCC recommends that the development of take-down procedures for copyright infringing content should be set out in an industry code determined by the ACMA. The ACCC advocates that this could be implemented by a similar scheme to that under the Telecommunications Act 1997 (at p. 275):

… [A]n industry code could be supported by a similar penalty regime as that applicable to mandatory industry codes registered under Part 6 of the Telecommunications Act, where contravention of a code may be met with a formal warning issued by the ACMA and civil penalties of up to AU$250 000 for each contravention.

An industry code may also assist rights holders in establishing a cause of action under the Copyright Act 1968. To accomplish this, these specific rules would need to be wholly set out in the code, following extensive consultation with stakeholders. The Government is now inviting submissions on the final report until 12 September.

Picture is by Wilson Afonso and is licensed under the Creative Commons Attribution 2.0 Generic license.