Influencing the law of digital media
It’s funny how the law evolves. Back in 2017, the Turnbull government introduced significant media reforms, making it easier for owners to own more. This worried some senators, such as Nick Xenophon, whose votes were needed to pass the reforms into law. So Xenophon and his motley crew negotiated for several concessions, including an inquiry by the competition regulator into the impact of digital platforms on news and advertising.
Doesn’t sound like much, right? As it happened, the ACCC’s Digital Platforms Inquiry grew from a whisper into a roar that’s still being heard globally. Its 2019 final report led to the passage of the News Media Bargaining Code, which has seen more than $200m flow annually from Google and Meta to news outlets. It also led to a major overhaul of privacy law, which will see dramatic updates to the Privacy Act implemented soon.
And even when the original inquiry wound up, the ACCC kept inquiring. In 2020, as directed by the government, it launched into the Digital Advertising Services Inquiry, which ran until 2021, and into the Digital Platform Services Inquiry (DPSI), scheduled to run until 2025. The DPSI’s purview is impressively broad, extending to ‘internet search engine services, social media services, online private messaging services, digital content aggregation platform services, media referral services and electronic marketplace services [as well as] digital advertising services supplied by digital platform service providers and the data practices of both digital platform service providers and data brokers’.
Last week the DPSI published its sixth interim report, and it’s another important piece of work. At nearly 200 pages, its focus is social media services, including influencers, who are big and getting bigger (see p. 15). In Australia, influencers are subject to (among other laws and regulations) defamation law, copyright law and the requirement to distinguish advertising from other content. That last one is prescribed by the Australian Association of National Advertisers Code of Ethics, the Australian Influencer Marketing Council Code of Practice and also the Australian Consumer Law, which prohibits misleading and deceptive conduct, as well as other unfair practices. This means influencers must disclose if they have accepted payment or free products or services. Unfortunately, a sweep conducted by the ACCC earlier this year found 81% of influencer posts comprised potentially misleading endorsements and testimonials. Worse yet, 96% of fashion influencers made concerning posts, often about fast fashion brands targeting younger consumers. For ACCC chair Gina Cass-Gottlieb, it calls to mind the cash-for-comment scandal of 1999: ‘It’s the 21st century incarnation of that.’ And for influencers, penalties can be stiff. Contravention of Australian consumer law can now attract fines of up to $2.5m for individuals.
Here’s my bold prediction. The ACCC won’t be done by 2025, because new challenges keep emerging. There’s AI, obviously, but so much more, such as cloud gaming. And so, using the tools of a competition regulator, the ACCC is working at the intersection of technology and media in the service of public interest journalism, the protection of privacy and, well, democracy. In other words, our market watchdog is upholding our human rights. It’s funny how the law evolves.
Sacha Molitorisz - Senior Lecturer, UTS Law
