Friday, October 25, 2019 at 10:46:39 AM GMT+10:00
Adrian Lawrence Andrew Stewart Lynsey Edgar Allison Manvell
Watch: Adrian Lawrence, Andrew Stewart, Lynsey Edgar and Allison Manvell, of Baker McKenzie, talk about what The Digital Platforms Inquiry Final Report means for Australian businesses and consumers.
Transcript of video interview:
Well look technology is kind of at the centre of everything. There's not really an industry that isn't worried about digitisation, how it deals with data, how it employs technology. What it means for their workforce. So it's nice to be in that space. Kind of at the centre of business. Every industry is talking to us about what's going on. What they need to do, what their industry is doing.
So the platform inquiry is a really nice example of that where you've had a regulator take a really close look at what's happening in a particular part of the industry, digital platforms. Central importance to anyone who plays in the technology space but to people generally.
Everybody is on social media. Everybody uses Google. Everybody has a phone.
So that's really kind of an examination from the ACCC's perspective of what it means to be a consumer in the digital age and what it means in terms of the relationships between businesses and digital platforms and how that plays out.
And it's become much more complex since then with the arrivals of well the internet changed absolutely everything, the digital platforms that we're talking about today, they've again come and just completely shifted the landscape. So more competitors, more content producers, more pathways to consumers and so all of that creates a very tangled complex mess and we're trying to operate in this regulatory structure that was created before most of it was invented.
So we're still working on a regulatory structure that just conceived radio, TV and TV really in its early forms of terrestrial TV and the beginnings of pay TV. Well those things still exist but there's a much more complex ecosystem around it now.
Over the last 10/15 years in terms of both consumer engagement and how people engage with media businesses, both online and traditionally but also in just who the big players are in these markets. You know that has shifted and our regulation hasn't necessarily shifted at the same pace.
And the other thing which came out of the report relates to proposed changes to the Australian Consumer Law and what the ACCC said and what they've been saying in various different forums many other times is that they would like there to be a prohibition against unfair contract terms.
So at the moment what there is is a law which says that terms which are unfair in standard form consumer contracts or small business contracts will be or could be void and unenforceable. But I think the ACCC thinks that this doesn't give companies enough incentive to ensure that their terms are fair. So they said they want them to be illegal and that would of course introduce civil penalties. If the companies who have standard form contracts, they wouldn't be able to sort of make that decision anymore about is it fair, is it okay to leave in, can we take the risk.
It will be a much more rigorous assessment as to whether or not a term is fair and then it will be included. Otherwise they could be subject to civil penalties.
The work I've been doing the last few years has been focussed very much on content production, doing site blocking cases for the US movie studios. That's been an interesting development.
A new approach to copyright enforcement where sort of essentially a no fault regime where copyright owners can get orders enforcing ISPs to block access to pirate sites. That's been working really well. This report starts to dig a bit deeper into some of these areas. We don't know where it's going to go yet. The government's got to do its consultation, but there could be enormous change coming.
I think the difficulty is that regulation has been behind now for nearly 20 years, almost as soon as the Broadcasting Services Act was passed it was out of date, or shortly would be, and we've had a series of reports, not unlike this one, saying we need to change the regulatory structure to catch up but we're playing catch up from a base which is just so far behind that means there's so much to do. In the broadcasting space, in the telecommunications space, the internet which is a mix of all of those things and then you have these different regulatory structures affecting different players but not only that it's the regulatory side but the economic side has shifted massively. So the funds that traditional activities can generate from advertising, the advertising dollars have shrunk and even when they manage to migrate to this new world, well then the digital dollars are less than the sort of analogue cents so it's a really complex situation but are we catching up? Nowhere near it yet. If every single reform that could be conceived of in this report was implemented, we'd be getting close. The technology will sure zoom ahead.
The key thing is that what we're going to see right now and in the next two years is change to the law. Change to how the law applies, change to how regulators and legislators want to apply the law and it's very interesting that Australia is actually at the forefront of that Australia is pushing, particularly the ACCC, is pushing for a real change to the bargain between consumers and businesses.
Thinking about how individuals data is collected and used and what rights individuals have in that data and how that might play out for these businesses that are generating a huge amount of value out of individuals data and so what we're seeing through the report is recommendations that that bargain starts to change and that individuals are more at the centre of in effect ownership, control of their own data and how that's used by, not just digital platforms but by every business. Every business is interested in this question. How do they access data and use data and so that's what we're going to see right now and over the next couple of years.
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