No more negotiating: new rules could finally force Google and Facebook to pay for news




Katharine Kemp, UNSW and Rob Nicholls, UNSW

Digital platforms such as Google and Facebook will be forced to compensate news media companies for using their content, under a new mandatory code to be drawn up by Australia’s competition watchdog.

The announcement, made by Treasurer Josh Frydenberg today, follows last year’s landmark report by the Australian Competition and Consumer Commission (ACCC), which found that news media businesses lack bargaining power in their negotiations with digital giants.




Read more:
Government orders mandatory code of conduct for Google, Facebook


News media businesses have complained for years that the loss of advertising revenue to Google and Facebook threatens their survival. The economic crash caused by the COVID-19 pandemic has turned that crisis into an emergency.

Frydenberg pledged that the latest move will “level the playing field”, adding: “It’s only fair that those that generate content get paid for it.”

Power imbalance and tumbling profits

A mandatory code of conduct was not the original plan. When the ACCC released its report last year, it suggested that Google and Facebook should each negotiate with news media businesses to agree on how they should fairly share revenues generated when “the digital platform obtains value, directly or indirectly, from content produced by news media businesses”.

The report concluded that tech giants are currently enjoying the benefit of news businesses’ content without paying for the privilege.

For example, Google’s search results feature “news snippets” including content from news websites. Both Google and Facebook have quick-loading versions of news businesses’ articles that don’t display the full range of paid advertising that appears on the news websites’ own pages.

These tactics make it less likely users will click through to the actual news website, thus depriving media businesses of the ensuing subscription and advertising revenue. Meanwhile, as the ACCC report showed, media companies’ share of advertising revenue has itself been slashed over the past decade, as advertisers flock to Google and Facebook.

Platforms giveth, platforms taketh away

Why don’t news businesses negotiate compensation payments with the platforms themselves, rather than asking the government to step in?

The answer is the vast mismatch in bargaining power between Australian media companies and global digital giants.

The ACCC report found that digital platforms such as Google and Facebook are “an essential gateway for news for many consumers”, meaning the news businesses rely on them for “referral traffic”.

Put simply, much of news companies’ web traffic comes via readers clicking on links from Google and Facebook. But at the same time, these digital giants are dominating advertising revenues and using news companies’ content in competition with them.

The pandemic effect

The COVID-19 crisis has dealt a further blow to media companies’ advertising revenue, as potential advertisers are forced into economic hibernation or simply go out of business.

Content licensing payments from Google and Facebook could provide crucial alternative revenue. But if the payments are structured as a share of advertising income, the publishers will share in Google and Facebook’s own advertising downturn.

The ACCC will not unveil the draft code until July, so it is still unclear how the obligations will be implemented or enforced.

ACCC chief Rod Sims has pledged that Australia’s mandatory code of conduct will feature “heavy penalties” for Facebook and Google if they fail to comply, involving fines that are “large enough to matter”.

How might Google and Facebook react?

The platforms could conceivably attempt to sidestep the compensation rules by no longer providing users with quick-loading versions of news articles. Google could also cease publishing news snippets at the top of its search results, as it did in Spain when faced with similar obligations.

But there is evidence, albeit from news publishers themselves, that this would merely drive readers directly to publishers’ websites.




Read more:
Australian media regulators face the challenge of dealing with global platforms Google and Facebook


Australia’s decision to abandon negotiations in favour of mandatory rules stands in contrast to the situation in France, the European state most advanced in the implementation of a similar policy flowing from the European Union’s 2019 Copyright Directive.

Earlier this month, France’s competition regulator ordered Google to negotiate in good faith with publishers on remuneration for use of content. Any agreed compensation will be backdated to October 24, 2019, when the Copyright Directive became law in France.

Google’s previous solution had been to require that publishers license the use of snippets of their content to Google at no charge. But France’s watchdog argued this was an abuse of Google’s dominant position.

Google and Facebook are likely to continue to resist these developments in Australia, knowing they could be copied in other jurisdictions.

Even if they do cooperate, it’s not yet clear that “levelling the playing field” with the tech giants will make any difference to the collapse of media advertising revenue driven by the coronavirus.The Conversation

Katharine Kemp, Senior Lecturer, Faculty of Law, UNSW, and Academic Lead, UNSW Grand Challenge on Trust, UNSW and Rob Nicholls, Associate professor in Business Law. Director of the UNSW Business School Cybersecurity and Data Governance Research Network, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Government orders mandatory code of conduct for Google, Facebook


Michelle Grattan, University of Canberra

The government has told the Australian Competition and Consumer Commission to develop a mandatory code of conduct to address bargaining power imbalances between media companies and digital platforms such as Facebook and Google – and the question of payment for content.

Earlier the ACCC was directed by the government to facilitate a voluntary code. But slow progress and the impact on the media of the coronavirus have convinced the government of the need for more urgent and compulsory action.

In its Digital Platforms Inquiry report of last year, the ACCC identified a bargaining power imbalance between news media organisations and these large digital platforms, and recommended codes of conduct to govern commercial relationships.

Treasurer Josh Frydenberg and Communications Minister Paul Fletcher have said in a statement the timeframe needs to be accelerated.

“The Australian media sector was already under significant pressure – that has now been exacerbated by a sharp decline in advertising revenue driven by coronavirus,” the ministers say.

“At the same time, while discussions between the parties have been taking place, progress on a voluntary code has been limited, according to recent advice provided by the ACCC”.

The ministers say the ACCC considers it unlikely any voluntary agreement would be reached on the key issue of payment for content.

The code will cover data sharing, ranking and display of news content, and the monetisation and the sharing of revenue generated from news. It will also include enforcement, penalty and binding dispute resolution mechanisms.

The ACCC will release a draft before the end of July, and the government wants the code finalised soon after that.

The University of Canberra’s 2019 Digital News Report said the majority of surveyed consumers who access news online get this news via indirect methods, such as social media, news aggregators, email newsletters and mobile alerts.

According to Nielsen Panel Data for February 2019, Google search had a unique audience of 19.7 million in Australia, and Facebook had a unique audience of 17.6 million.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Twitter is banning political ads – but the real battle for democracy is with Facebook and Google



Twitter should get credit for its sensible move, but the microblogging company is tiny compared to Facebook and Google.
Shutterstock

Johan Lidberg, Monash University

Finally, some good news from the weirdo-sphere that is social media. Twitter CEO Jack Dorsey has announced that, effective November 22, the microblogging platform will ban all political advertising – globally.

This is a momentous move by Twitter. It comes when Facebook and its CEO Mark Zuckerberg are under increasing pressure to deal with the amount of mis- and disinformation published via paid political advertising on Facebook.

Zuckerberg recently told a congress hearing Facebook had no plans of fact-checking political ads, and he did not answer a direct question from Congresswoman Alexandria Ocasio-Cortez if Facebook would take down political ads found to be untrue. Not a good look.

A few days after Zuckerberg’s train wreck appearance before the congress committee, Twitter announced its move.




Read more:
Merchants of misinformation are all over the internet. But the real problem lies with us


While Twitter should get credit for its sensible move, the microblogging company is tiny compared to Facebook and Google. So, until the two giants change, Twitter’s political ad ban will have little effect on elections around the globe.

A symptom of the democratic flu

It’s important to call out Google on political advertising. The company often manages to fly under the radar on this issue, hiding behind Facebook, which takes most of the flack.

The global social media platforms are injecting poison into liberal democratic systems around the globe. The misinformation and outright lies they allow to be published on their platforms is partly responsible for the increasingly bitter deep partisan divides between different sides of politics in most mature liberal democracies.

Add to this the micro targeting of voters illustrated by the Cambridge Analytica scandal, and a picture emerges of long-standing democratic systems under extreme stress. This is clearly exemplified by the UK parliament’s paralysis over Brexit and the canyon-deep political divides in the US.




Read more:
Why you should talk to your children about Cambridge Analytica


Banning political advertising only deals with a symptom of the democratic flu the platforms are causing. The root cause of the flu is the fact social media platforms are no longer only platforms – they are publishers.

Until they acknowledge this and agree to adhere to the legal and ethical frameworks connected with publishing, our democracies will not recover.

Not platforms, but publishers

Being a publisher is complex and much more expensive than being a platform. You have to hire editorial staff (unless you can create algorithms advanced enough to do editorial tasks) to fact-check, edit and curate content. And you have to become a good corporate citizen, accepting you have social responsibilities.

Convincing the platforms to accept their publisher role is the most long-term and sustainable way of dealing with the current toxic content issue.

Accepting publisher status could be a win-win, where the social media companies rebuild trust with the public and governments by acting ethcially and socially responsibly, stopping the poisoning of our democracies.

Mark Zuckerberg claims Facebook users being able to publish lies and misinformation is a free speech issue. It is not. Free speech is a privilege as well as a right and, like all privileges, it comes with responsibilities and limitations.

Examples of limitations are defamation laws and racial vilification and discrimination laws. And that’s just the legal framework. The strong ethical frame work that applies to publishing should be added to this.

Ownership concentration like never before

Then, there’s the global social media oligopoly issue. Never before in recorded human history have we seen any industry achieve a level of ownership concentration displayed by the social media companies. This is why this issue is so deeply serious. It’s global, it reaches billions and the money and profits involved is staggering.




Read more:
The fightback against Facebook is getting stronger


Facebook co-founder, Chris Hughes, got it absolutely right when he in his New York Times article pointed out the Federal Trade Commission – the US equivalent to the Australian Competition and Consumer Commission – got it wrong when they allowed Facebook to buy Instagram and WhatsApp.

Hughes wants Facebook broken up and points to the attempts from parts of US civil society moving in this direction. He writes:

This movement of public servants, scholars and activists deserves our support. Mark Zuckerberg cannot fix Facebook, but our government can.

Yesterday, I posted on my Facebook timeline for the first time since the Cambridge Analytica scandal broke. I made the point that after Twitter’s announcement, the ball is now squarely in Facebook’s and Google’s courts.

For research and professional reasons, I cannot delete my Facebook account. But I can pledge to not be an active Facebook user until the company grows up and shoulders its social responsibility as an ethical publisher that enhances our democracies instead of undermining them.The Conversation

Johan Lidberg, Associate Professor, School of Media, Film and Journalism, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Regulating Facebook, Google and Amazon is hard given their bewildering complexity



Governments are attempting to regulate tech giants, but the digital disruption genie is already out of the bottle.
Shutterstock

Zac Rogers, Flinders University

Back in the 1990s – a lifetime ago in internet terms – the Spanish sociologist Manuel Castells published several books charting the rise of information networks. He predicted that in the networked age, more value would accrue in controlling flows of information than in controlling the content itself.

In other words, those who positioned themselves as network hubs – the routers and switchers of information – would become the gatekeepers of power in the digital age.

With the rise of internet juggernauts Google, Facebook, Amazon and others, this insight seems obvious now. But over the past two decades, a fundamentally new business model emerged which even Castells had not foreseen – one in which attracting users onto digital platforms takes precedence over everything else, including what the user might say, do, or buy on that platform.

Gathering information became the dominant imperative for tech giants – aided willingly by users charmed first by novelty, then by the convenience and self-expression afforded by being online. The result was an explosion of information, which online behemoths can collate and use for profit.




Read more:
Here’s how tech giants profit from invading our privacy, and how we can start taking it back


The sheer scale of this enterprise means that much of it is invisible to the everyday user. The big platforms are now so complex that their inner workings have become opaque even to their engineers and administrators. If the system is now so huge that not even those working within it can see the entire picture, then what hope do regulators or the public have?

Of course, governments are trying to fight back. The GDPR laws in Europe, the ACCC Digital Platforms report in Australia, and the DETOUR Act introduced to the US Congress in April – all are significant attempts to claw back some agency. At the same time, it is dawning on societies everywhere that these efforts, while crucial, are not enough.




Read more:
Consumer watchdog calls for new measures to combat Facebook and Google’s digital dominance


Gatekeepers reign supreme

If you think of the internet as a gigantic machine for sharing and copying information, then it becomes clear that the systems for sorting that information are vitally important. Think not just of Google’s search tool, but also of the way Google and Amazon dominate cloud computing – the largely invisible systems that make the internet usable.

Over time, these platforms have achieved greater and greater control over how information flows through them. But it is an unfamiliar type of control, increasingly involving autonomous, self-teaching systems that are increasingly inscrutable to humans.

Information gatekeeping is paramount, which is why platforms such as Google, Amazon and Facebook have risen to supremacy. But that doesn’t mean these platforms necessarily need to compete or collude with one another. The internet is truly enormous, a fact that has allowed each platform to become emperor of a growing niche: Google for search, Facebook for social, Amazon for retail, and so on. In each domain, they played the role of incumbent, disruptor, and innovator, all at the same time.

Now nobody competes with them. Whether you’re an individual, business, or government, if you need the internet, you need their services. The juggernauts of the networked age are structural.

Algorithms are running the show

For these platforms to stay on top, innovation is a constant requirement. As the job of sorting grows ever larger and more complex, we’re seeing the development of algorithms so advanced that their human creators have lost the capacity to understand their inner workings. And if the output satisfies the task at hand, the inner workings of the system are considered of minor importance.

Meanwhile, the litany of adverse effects are undeniable. This brave new machine-led world is eroding our capacity to identify, locate, and trust authoritative information, in favour of speed.

It’s true that the patient was already unwell; societies have been hollowed out by three decades of market fundamentalism. But as American tech historian George Dyson recently warned, self-replicating code is now out there in the cyber ecosystem. What began as a way for humans to coax others into desired behaviours now threatens to morph into nothing less than the manipulation of humans by machines.

The digital age has spurred enormous growth in research disciplines such as social psychology, behavioural economics, and neuroscience. They have yielded staggering insights into human cognition and behaviour, with potential uses that are far from benign.

Even if this effort had been founded with the best of intentions, accidents abound when fallible humans intervene in complex systems with fledgling ethical and legal underpinnings. Throw malign intentions into the mix – election interference, information warfare, online extremism – and the challenges only mount.

If you’re still thinking about digital technologies as tools – implying that you, the user, are in full control – you need to think again. The truth is that no one truly knows where self-replicating digital code will take us. You are the feedback, not the instruction.

Regulators don’t know where to start

A consensus is growing that regulatory intervention is urgently required to stave off further social disruption, and to bring democratic and legal oversight into the practices of the world’s largest monopolies. But, if Dyson is correct, the genie is already out of the bottle.

Entranced by the novelty and convenience of life online, we have unwittingly allowed silicon valley to pull off a “coup from above”. It is long past time that the ideology that informed this coup, and is now governing so much everyday human activity, is exposed to scrutiny.




Read more:
Explainer: what is surveillance capitalism and how does it shape our economy?


The challenges of the digital information age extend beyond monopolies and privacy. This regime of technologies was built by design without concerns about exploitation. Those vulnerabilities are extensive and will continue to be abused, and now that this tech is so intimately a part of daily life, its remediation should be pursued without fear or favour.

Yet legislative and regulatory intervention can only be effective if industry, governments and civil society combine to build, by design, a digital information age worthy of the name, which doesn’t leave us all open to exploitation.The Conversation

Zac Rogers, Research Lead, Jeff Bleich Centre for the US Alliance in Digital Technology, Security, and Governance, Flinders University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Here’s how tech giants profit from invading our privacy, and how we can start taking it back



Your online activity can be turned into an intimate portrait of your life – and used for profit.
Shutterstock.com

Katharine Kemp, UNSW

Australia’s consumer watchdog has recommended major changes to our consumer protection and privacy laws. If these reforms are adopted, consumers will have much more say about how we deal with Google, Facebook, and other businesses.

The proposals include a right to request erasure of our information; choices about whether we are tracked online and offline; potential penalties of A$10 million or more for companies that misuse our information or impose unfair privacy terms; and default settings that favour privacy.




Read more:
Consumer watchdog calls for new measures to combat Facebook and Google’s digital dominance


The report from the Australian Competition and Consumer Commission (ACCC) says consumers have growing concerns about the often invisible ways companies track us and disclose our information to third parties. At the same time, many consumers find privacy policies almost impossible to understand and feel they have no choice but to accept.

My latest research paper details how companies that trade in our personal data have incentives to conceal their true practices, so they can use vast quantities of data about us for profit without pushback from consumers. This can preserve companies’ market power, cause harm to consumers, and make it harder for other companies to compete on improved privacy.

The vicious cycle of privacy abuse.
Helen J. Robinson, Author provided

Privacy policies are broken

The ACCC report points out that privacy policies tend to be long, complex, hard to navigate, and often create obstacles to opting out of intrusive practices. Many of them are not informing consumers about what actually happens to their information or providing real choices.

Many consumers are unaware, for example, that Facebook can track their activity online when they are logged out, or even if they are not a Facebook user.




Read more:
Shadow profiles – Facebook knows about you, even if you’re not on Facebook


Some privacy policies are outright misleading. Last month, the US Federal Trade Commission settled with Facebook on a US$5 billion fine as a penalty for repeatedly misleading users about the fact that personal information could be accessed by third-party apps without the user’s consent, if a user’s Facebook “friend” gave consent.

If this fine sounds large, bear in mind that Facebook’s share price went up after the FTC approved the settlement.

The ACCC is now investigating privacy representations by Google and Facebook under the Australian Consumer Law, and has taken action against the medical appointment booking app Health Engine for allegedly misleading patients while it was selling their information to insurance brokers.

Nothing to hide…?

Consumers generally have very little idea about what information about them is actually collected online or disclosed to other companies, and how that can work to their disadvantage.

A recent report by the Consumer Policy Research Centre explained how companies most of us have never heard of – data aggregators, data brokers, data analysts, and so on – are trading in our personal information. These companies often collect thousands of data points on individuals from various companies we deal with, and use them to provide information about us to companies and political parties.

Data companies have sorted consumers into lists on the basis of sensitive details about their lifestyles, personal politics and even medical conditions, as revealed by reports by the ACCC and the US Federal Trade Commission. Say you’re a keen jogger, worried about your cholesterol, with broadly progressive political views and a particular interest in climate change – data companies know all this about you and much more besides.

So what, you might ask. If you’ve nothing to hide, you’ve nothing to lose, right? Not so. The more our personal information is collected, stored and disclosed to new parties, the more our risk of harm increases.

Potential harms include fraud and identity theft (suffered by 1 in 10 Australians); being charged higher retail prices, insurance premiums or interest rates on the basis of our online behaviour; and having our information combined with information from other sources to reveal intimate details about our health, financial status, relationships, political views, and even sexual activity.




Read more:
Why you might be paying more for your airfare than the person seated next to you


In written testimony to the US House of Representatives, legal scholar Frank Pasquale explained that data brokers have created lists of sexual assault victims, people with sexually transmitted diseases, Alzheimer’s, dementia, AIDS, sexual impotence or depression. There are also lists of “impulse buyers”, and lists of people who are known to be susceptible to particular types of advertising.

Major upgrades to Australian privacy laws

According to the ACCC, Australia’s privacy law is not protecting us from these harms, and falls well behind privacy protections consumers enjoy in comparable countries in the European Union, for example. This is bad for business too, because weak privacy protection undermines consumer trust.

Importantly, the ACCC’s proposed changes wouldn’t just apply to Google and Facebook, but to all companies governed by the Privacy Act, including retail and airline loyalty rewards schemes, media companies, and online marketplaces such as Amazon and eBay.

Australia’s privacy legislation (and most privacy policies) only protect our “personal information”. The ACCC says the definition of “personal information” needs to be clarified to include technical data like our IP addresses and device identifiers, which can be far more accurate in identifying us than our names or contact details.




Read more:
Explainer: what is surveillance capitalism and how does it shape our economy?


Whereas some companies currently keep our information for long periods, the ACCC says we should have a right to request erasure to limit the risks of harm, including from major data breaches and reidentification of anonymised data.

Companies should stop pre-ticking boxes in favour of intrusive practices such as location tracking and profiling. Default settings should favour privacy.

Currently, there is no law against “serious invasions of privacy” in Australia, and the Privacy Act gives individuals no direct right of action. According to the ACCC, this should change. It also supports plans to increase maximum corporate penalties under the Privacy Act from A$2.1 million to A$10 million (or 10% of turnover or three times the benefit, whichever is larger).

Increased deterrence from consumer protection laws

Our unfair contract terms law could be used to attack unfair terms imposed by privacy policies. The problem is, currently, this only means we can draw a line through unfair terms. The law should be amended to make unfair terms illegal and impose potential fines of A$10 million or more.

The ACCC also recommends Australia adopt a new law against “unfair trading practices”, similar to those used in other countries to tackle corporate wrongdoing including inadequate data security and exploitative terms of use.

So far, the government has acknowledged that reforms are needed but has not committed to making the recommended changes. The government’s 12-week consultation period on the recommendations ends on October 24, with submissions due by September 12.The Conversation

Katharine Kemp, Senior Lecturer, Faculty of Law, UNSW, and Co-Leader, ‘Data as a Source of Market Power’ Research Stream of The Allens Hub for Technology, Law and Innovation, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Australian media regulators face the challenge of dealing with global platforms Google and Facebook



‘Google and Facebook are global companies, headquartered in the US, for whom Australia is a significant but relatively small market.’
Shutterstock/Roman Pyshchyk

Terry Flew, Queensland University of Technology

With concerns growing worldwide about the economic power of digital technology giants such as Google and Facebook, there was plenty of interest internationally in Australia’s Digital Platforms Inquiry.

The Australian Competition and Consumer Commission (ACCC) inquiry was seen as undertaking a forensic account of market dominance by digital platforms, and the implications for Australian media and the rights of citizens around privacy and data protection.

The inquiry’s final report, released last month, has been analysed from perspectives such as competition policy, consumer protection and the future of journalism.




Read more:
Consumer watchdog calls for new measures to combat Facebook and Google’s digital dominance


But the major limitation facing the ACCC, and the Australian government, in developing new regulations for digital platforms is jurisdictional authority – given these companies are headquartered in the United States.

More ‘platform neutral’ approach

Among the ACCC’s 23 recommendations is a proposal to reform media regulations to move from the current platform-specific approaches (different rules for television, radio, and print media) towards a “platform-neutral” approach.

This will ensure comparable functions are effectively and consistently regulated:

Digitalisation and the increase in online sources of news and media content highlight inconsistencies in the current sector-specific approach to media regulation in Australia […]

Digital platforms increasingly perform similar functions to media businesses, such as selecting and curating content, evaluating content, and ranking and arranging content online. Despite this, virtually no media regulation applies to digital platforms.

The ACCC’s recommendations to harmonise regulations across different types of media draw on major Australian public enquiries from the early 2010s, such as the Convergence Review and the Australian Law Reform Commission’s review of the national media classification system. These reports identified the inappropriateness of “silo-ised” media laws and regulations in an age of digital convergence.




Read more:
What Australia’s competition boss has in store for Google and Facebook


The ACCC also questions the continued appropriateness of the distinction between platforms and publishers in an age where the largest digital platforms are not simply the carriers of messages circulated among their users.

The report observes that such platforms are increasingly at the centre of digital content distribution. Online consumers increasingly access social news through platforms such as Facebook and Google, as well as video content through YouTube.

The advertising dollar

While the ACCC inquiry focused on the impact of digital platforms on news, we can see how they have transformed the media landscape more generally, and where issues of the wider public good arise.

Their dominance over advertising has undercut traditional media business models. Online now accounts for about 50% of total advertising spend, and the ACCC estimates that 71 cents of every dollar spent on digital advertising in Australia goes to Google or Facebook.

All media are now facing the implications of a more general migration to online advertising, as platforms can better micro-target consumers rather than relying on the broad brush approach of mass media advertising.

The larger issue facing potential competitors to the digital giants is the accumulation of user data. This includes the lack of transparency around algorithmic sorting of such data, and the capacity to use machine learning to apply powerful predictive analytics to “big data”.

In line with recent critiques of platform capitalism, the ACCC is concerned about the lack of information consumers have about what data the platforms hold and how it’s being used.

It’s also concerned the “winner-takes-most” nature of digital markets creates a long term structural crisis for media businesses, with particularly severe implications for public interest journalism.

Digital diversity

Digital platform companies do not sit easily within a recognisable industry sector as they branch across information technology, content media, and advertising.

They’re also not alike. While all rely on the capacity to generate and make use of consumer data, their business models differ significantly.

The ACCC chose to focus only on Google and Facebook, but they are quite different entities.

Google dominates search advertising and is largely a content aggregator, whereas Facebook for the most part provides display advertising that accompanies user-generated social media. This presents its own challenges in crafting a regulatory response to the rise of these digital platform giants.

A threshold issue is whether digital platforms should be understood to be media businesses, or businesses in a more generic sense.

Communications policy in the 1990s and 2000s commonly differentiated digital platforms as carriers. This indemnified them from laws and regulations relating to content that users uploaded onto their sites.

But this carriage/content distinction has always coexisted with active measures on the part of the platform companies to manage content that is hosted on their sites. Controversies around content moderation, and the legal and ethical obligations of platform providers, have accelerated greatly in recent years.

To the degree that companies such as Google and Facebook increasingly operate as media businesses, this would bring aspects of their activities within the regulatory purview of the Australian Communication and Media Authority (ACMA).

The ACCC recommended ACMA should be responsible for brokering a code of conduct governing commercial relationships between the digital platforms and news providers.




Read more:
Consumer watchdog: journalism is in crisis and only more public funding can help


This would give it powers related to copyright enforcement, allow it to monitor how platforms are acting to guarantee the trustworthiness and reliability of news content, and minimise the circulation of “fake news” on their sites.

Overseas, but over here

Companies such as Google and Facebook are global companies, headquartered in the US, for whom Australia is a significant but relatively small market.

The capacity to address competition and market dominance issues is limited by the fact real action could only meaningfully occur in their home market of the US.

Australian regulators are going to need to work closely with their counterparts in other countries and regions: the US and the European Union are the two most significant in this regard.The Conversation

Terry Flew, Professor of Communication and Creative Industries, Queensland University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

What Australia’s competition boss has in store for Google and Facebook



Google will find it harder to expand, but there’s only so much the ACCC can do.
Shutterstock

Caron Beaton-Wells, University of Melbourne

Central to the Australian Competition and Consumer Commission’s Digital Platforms inquiry were two questions:

  • do Google and Facebook hold substantial power in crucial digital markets?

  • does this power pose a risk to competitive processes?

In its Final Report released by the government on Friday, the ACCC correctly answered both with a resounding “yes”.


ACCC, July 28, 2019

The ACCC did not set out to determine whether either company has broken the competition rules. That can only be determined in an investigation of specific conduct based on specific facts and evidence.

The report itemises six such investigations already underway.

Having identified risks, the ACCC did set out to determine how they might be contained.

Its proposals are rightly cautious, reflecting the complexities of digital markets and the challenges in ensuring that any intervention protects the competitive process rather than individual competitors.

With market power comes dangers

The ACCC points out that substantial power won by serving consumers is not against the law.

It acknowledges that Google and Facebook provide services that are highly valued.

And it emphasises the distinctive features of digital markets that contribute to this power: extraordinary economies of scale, network effects, massive accumulations of data and the use of highly sophisticated data analytic techniques.

These features help Google dominate internet search and internet search advertising and help Facebook dominate social networks and display advertising.

While they also help deliver value for consumers, they can be used against new entrants that may offer a better deal and against other businesses (such as traditional media companies) that have come to rely on Google and Facebook to deliver services to customers.

The ACCC wants to reduce the risks…

There are no quick fixes. The ACCC rightly rejected the idea that platforms such as Google and Facebook be broken up.

Given the highly interconnected complex nature of the markets in which the major platforms participate, divestiture would not guarantee, and might in fact harm, consumer welfare.

The report recommends instead building up the ACCC’s capacity to aggressively enforce the competition rules and to review acquisitions that would further entrench the dominant players’ market power.

Many of the other recommendations are designed to ameliorate imbalances in information and bargaining power between the platforms and business users, and between the platforms and consumers in relation to the collection and use of their personal data.




Read more:
Consumer watchdog calls for new measures to combat Facebook and Google’s digital dominance


Implementing these recommendations presents challenges, not the least of which is to ensure they don’t themselves damage competition.

…hunt out abuses…

The ACCC proposes the establishment of a new specialist branch within the ACCC to build and sustain the skills needed to continue studying digital platforms and enforcing their competition and consumer rules.

This is a welcome initiative. It replicates similar capacity-building initiatives in the United States and Europe.

The report is peppered with references to European cases in which Google has been subject to thundering fines for various abuses of dominance. It also invokes the European mantra that these powerful companies have “special responsibility”.

But the Australian misuse of market power prohibition may not be flexible as the one in Europe. The ACCC has recommended broadening the unfair trading law in order to allow it more flexibility, and not only for use in dealing with digital platforms.

The recently amended section 46 of the Competition and Consumer Act will play a role, but it is yet to be taken for a proper run and, in the digital context, its application will be complicated by the rapid pace of innovation in digital markets.

…and scrutinise mergers…

In an acknowledgement that digital mergers are different, the ACCC wants to ensure the merger laws pay attention to mergers with potential as well as actual competitors, and to mergers with the owners of data assets.

It also wants Google and Facebook to voluntarily notify it of any future acquisitions. This is a polite request backed by a thinly veiled threat of repercussions.

But the report also implies that neither of these proposals may be enough.

Still more changes to the merger law might be needed to persuade judges of the need to stem unhealthy concentration in the Australian economy generally.

Australia almost certainly needs a compulsory notification regime, triggered by a combination of turnover and transaction value thresholds to ensure nascent competitors are not snuffed out.




Read more:
ACCC wants to curb digital platform power – but enforcement is tricky


Both of these are bigger conversations that the Commission needs to engage government and business in.

…while not offering much for legacy media…

The Commission has stepped away from a proposal in its preliminary report that there be a special regulator to oversee the relationships between platforms and media organisations, significant business users and advertisers.

It might have listened to criticism that the proposal would benefit traditional players in disrupted industries more than it benefits consumers.

The advertising industry is highly fragmented, complex and constantly changing. The evidence that the new platforms are distorting competition in the industry is questionable at best. The ACCC has sensibly suggested it needs to thoroughly examine dynamics in the ad tech supply chain before firming up any recommendation.

For the media industry, the compromise is that each platform be required to negotiate a code of conduct to be overseen and enforced by the Australian Communications and Media Authority.

Whether this will address media concerns about the appropriation of their content and about short notice periods for algorithm changes that can make their products hard to find remains to be seen.




Read more:
Digital platforms. Why the ACCC’s proposals for Google and Facebook matter big time


But, recognising that the platforms are themselves knee-deep in the media business, the ACCC has called for a wholesale overhaul of media regulation to level the playing field and remove regulatory impediments to competition, an idea the government seems to have accepted.

…and upgrading protections for privacy

The call for broad ranging reform of our privacy laws to wrench them into the digital age is also likely to be accepted by government.

The platforms might grumble at additional privacy requirements imposed country by country without an international standard, but the proposal to work with them on the development of an enforceable code at least allows them a seat at the table, and a chance to ensure the regulations are workable.

The challenge will be to ensure that the regulatory burdens don’t disproportionately hurt small businesses and prospective entrants, the ones the ACCC wants to help.

An imminent ACCC-led reform that will help both new entrants and consumers is the Consumer Data Right, which will give consumers more control of their data and enable them to move it between suppliers.




Read more:
We can put a leash on Google and Facebook, but there’s no saving the traditional news model


The ACCC’s work on digital platforms has just begun and there is a long and bumpy road ahead. The government should give it the time and money it will need to get on with it.


Caron Beaton-Wells is host of the Competition Lore podcast, exploring competition policy and law in a digital age.The Conversation

Caron Beaton-Wells, Professor, Melbourne Law School, University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

We can put a leash on Google and Facebook, but there’s no saving the traditional news model


Amanda Lotz, Queensland University of Technology

Living with two preteens, I get almost daily requests to approve new apps. My standard response is to ask my kids to describe the app, why they want it, and how it makes money.

The last question is important, and not just to avoid to avoid in-app charges. Understanding the forces that drive the online economy is crucial for consumers, and increasingly citizens. All the new tools we access come at a cost even when they seem to be free.

How technology companies make money is a good question for digital media users of any age. It lies at the heart of the Australian Competition and Consumer Commission’s inquiry into the power and profits of Google and Facebook, the world’s two most ubiquitous digital platforms.


Australians’ time spent online.
ACCC Digital Platforms Inquiry Final Report

The competition watchdog’s job was to look at how online search engines, social media and digital content aggregators wield power in media and advertising, how that undermines the viability of traditional journalism (print in particular), and what can be done about it.

Limited recommendations

Its final report makes a swag of recommendations to limit these platforms’ market dominance and use of personal data.




Read more:
What Australia’s competition boss has in store for Google and Facebook


One example is requiring devices to offer consumers a choice of search engine and default browsers. Google now requires Android phones to pre-install Google apps. This feeds a “default bias” that contributes to it being used for 95% of Australian searches.

Another is reforming Australia’s privacy laws to address the digital environment. Platforms’ “take it or leave it” policies now give consumers little choice on having their data harvested.




Read more:
Consumer watchdog calls for new measures to combat Facebook and Google’s digital dominance


But on the area of concern central to the inquiry’s establishment –
the decline in journalism – the recommendations are relatively minor:

  • a code of conduct to treat news media businesses “fairly, reasonably and transparently”
  • “stable and adequate” government funding for the ABC and SBS
  • government grants (A$50 million a year) to support original local journalism
  • tax incentives to encourage philanthropic support for journalism.

The reality is that there is little governments can do to reverse the technological disruption of the journalism business.

Targeted revolution

The internet has made stark that news organisations aren’t primarily in the journalism business. The stories they produce play an incomparable social role, but the business model is to deliver an audience to advertisers.


Australian advertising expenditure by media format and digital platform.
ACCC

Social media and search give advertisers better tools to target messages to more precise groups of potential consumers. It is a phenomenally better mousetrap.

Traditional advertising is expensive and inefficient. An advertiser pays to reach a broad audience, most with no interest in what is being advertised.

Search allows advertisers to pay to reach people precisely when they are looking for something. Google knows what you are interested in, and serves up advertising accordingly. In the last quarter alone advertising in its properties (Search, Maps, Gmail, YouTube, Play Store and Shopping) made US$27.3 billion in revenue.

Social media platforms have a different model, but one no less damaging to the old newspaper business model. It’s a bit more like traditional mass media advertising, selling the attention of users to advertisers, but in a far more targeted way.

To the extent Facebook, Instagram, Twitter and so on capture your attention, and effectively monetise content made by others through sharing, they also undercut traditional news businesses.

Follow the money

No regulation can fix this. As the competition watchdog’s report notes, Australian law does not prohibit a company from having substantial market power. Nor does it prohibit a company “from ‘out-competing’ its rivals by using superior skills and efficiency”.

No one – not even the tech companies – is necessarily to blame for the technological innovation that has disrupted traditional news organisations.

To see that, as with my kids understanding how their apps make money, it’s just a case of following the money.The Conversation

Amanda Lotz, Fellow, Peabody Media Center; Professor of Media Studies, Queensland University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Consumer watchdog calls for new measures to combat Facebook and Google’s digital dominance



Facebook and Google potentially face fresh curbs on their market power.
Shutterstock.com

Rob Nicholls, UNSW and Katharine Kemp, UNSW

The Australian Competition and Consumer Commission (ACCC) has called for “holistic, dynamic reforms” to address the online dominance of digital behemoths such as Google and Facebook.

A 600-page report, released today, makes 23 recommendations for regulating digital platforms – covering competition law, consumer protection, media regulation, and privacy.

Most of the suggested reforms are aimed squarely at countering the dominance of Facebook and Google, which the ACCC says has distorted a range of markets including advertising and media.




Read more:
ACCC wants to curb digital platform power – but enforcement is tricky


The ACCC recommends forming a new branch to deal specifically with Google and Facebook. But it doesn’t propose itself as the sole watchdog: the report also recommends a regulatory role for the Australian Communications and Media Authority (ACMA).

Meanwhile, the Office of the Australian Information Commissioner (OAIC) is called upon to develop an enforceable code to regulate platforms’ use of data. And even the Australian Tax Office will potentially be involved, as part of a proposal to introduce measures to encourage philanthropic funding of public-interest journalism.

Digital platforms with more than a million active users in Australia will be required to provide ACMA with codes to address the imbalance in the bargaining relationship between these platforms and news media businesses. These codes are expected to recognise the need for value-sharing and monetisation of news content.

Under the recommendations, ACMA would also be expected to monitor digital platforms’ efforts to identify reliable and trustworthy news, and to manage a mandatory take-down code for content that breaches copyright.

Market muscle

The ACCC report highlights the “substantial market power” enjoyed by Google and Facebook in their respective domains of web searching and social media. While it is not unlawful for firms to have this degree of power, it does mean they are likely to be subject to the (as yet untested) misuse of market power law introduced in 2017.

The ACCC is concerned that current merger laws do not go far enough, given large platforms’ ability to remove future competitive threats by simply buying start-ups outright. Such acquisitions may also increase the platforms’ access to data. The ACCC considers that either or both of these could entrench a platform’s market power.

As a result, the report recommends changes to Australia’s merger laws to expressly require consideration of the effect of potential competition, and to recognise the importance of data. It also recommends that platforms should be obliged to notify the ACCC in advance of any proposed acquisition.

This is not a substantial change to the existing law, which already allows consideration of anti-competitiveness. But it is a signal that the ACCC will be focusing on this issue.

The ACCC also wants Google to allow Australian users of Android devices to choose their search engine and internet browser – a right already enjoyed by Android users in the European Union.

Empowering consumers

The ACCC recommends substantial changes to Australian Consumer Law, to address the huge inequalities in bargaining power between digital platforms and consumers when it comes to terms of use, and particularly privacy.

The report’s most significant proposal in this area is to outlaw “unfair practices”, in line with similar bans in the US, UK, Europe, Canada, and elsewhere. This would cover conduct that is not covered by existing laws governing the misuse of market power, misleading or deceptive conduct, or unconscionable conduct.

This could be relevant, for example, where a digital platform imposes particularly invasive privacy terms on its users, which far outweigh the benefits of the service provided. The ACCC also called for digital platforms to face significant fines for imposing unfair contract terms on users.

The report recommends a new mandatory standard to bolster digital platforms’ internal dispute resolution processes. This would be reinforced by the creation of a new ombudsman to assist with resolving disputes and complaints between consumers and digital platforms.

Protecting privacy

The ACCC found that digital platforms’ privacy policies are long, complex, vague, and hard to navigate, and that many platforms do not provide consumers with meaningful control over how their data is handled.

The report therefore calls for stronger legal privacy protections, as part of a broader reform of Australian privacy law. This includes agreeing with the Australian Law Reform Commission on the need for a statutory tort for serious invasions of privacy.

Legal action ahead?

The ACCC also highlighted several matters on which it is considering future actions. These include the question of whether Facebook breached consumer law by allowing users’ data to be shared with third parties (potentially raising similar issues to the investigation by the US Federal Trade Commission, which this week resulted in a US$5 billion fine against Facebook), and whether Google has collated users’ location data in an unlawful way.




Read more:
Digital platforms. Why the ACCC’s proposals for Google and Facebook matter big time


In a statement, Treasurer Josh Frydenberg and federal communications minister Paul Fletcher accepted the ACCC’s overriding conclusion that there is a need for reform.

The federal government will now begin a 12-week public consultation process, and said it expects to release its formal response to the report by the end of the year.The Conversation

Rob Nicholls, Senior lecturer in Business Law, UNSW and Katharine Kemp, Senior Lecturer, Faculty of Law, UNSW, and Co-Leader, ‘Data as a Source of Market Power’ Research Stream of The Allens Hub for Technology, Law and Innovation, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Facebook is now cleaner, faster and group-focused, but still all about your data


Belinda Barnet, Swinburne University of Technology

Have you noticed your Facebook feed looks different lately?

It’s a bit more “zen”, uncluttered and faster. Instagram-like story posts are displayed first, and a separate feed allows you to keep up with the latest activity in your groups.

Someone has assembled a ring of comfy chairs in your lounge room and invited the local mums and bubs group over for hot cocoa and biscuits. Even the hearts are squishier.

Facebook hearts are now bigger and squishier.
Screen shot June 4 2019

According to Facebook’s CEO Mark Zuckerberg, it’s “the biggest change to the app and website in the last five years”.

This cosmetic change could represent the first step in Facebook’s “privacy pivot” announced in March 2019. But we’re still waiting to hear exactly what will be happening with our data.




Read more:
Privacy pivot: Facebook wants to be more like WhatsApp. But details are scarce


Pile on Facebook

Facebook has been under immense pressure from both the Federal Trade Commission in the United States, and governments around the world in the wake of a string of privacy scandals (including Cambridge Analytica).

After live-streamed terrorism in New Zealand, Jacinda Ardern is leading a global charge for regulation and oversight. The recent Christchurch Call meeting resulted in tech companies and world leaders signing an agreement to eliminate terrorist and violent extremist content online.

Everyone is piling on Facebook, even Zuckerberg’s original platform co-founder Chris Hughes.

Hughes said “it’s time to break up Facebook” and “the government must hold Mark accountable”. He was referring to the huge power Zuckerberg holds through controlling the algorithms that keep Facebook – and more recently acquired platforms Instagram and Whatsapp – ticking over. Those algorithms functionalise Facebook’s vast body of user data.




Read more:
The ‘Christchurch Call’ is just a start. Now we need to push for systemic change


Putting it lightly

Zuckerberg admits that changes must be made, saying in April:

I know we don’t exactly have the strongest reputation on privacy right now, to put it lightly.

Facebook’s business model is built on harvesting platform data about its users, crunching that to generate behavioural inferences like “divorced, male, no children, interested in weight loss”, and then selling this package to advertisers.

Technology scholar Shoshanna Zuboff calls the process of collecting and selling user data “surveillance capitalism”.

Privacy was never part of Facebook’s floor plan.

In its defence, it doesn’t sell identifiable data, and it has clamped down on developer access to its data.

That’s because developers are not the customer – nor are the users who are clicking on like buttons or buying yoga pants. Facebook’s customers are advertisers.

Facebook sells one product: a powerful capacity to personalise and target ads that is unparalleled in any other platform. This turned a profit of US$16 billion in the last quarter of 2018.

It seems reasonable to assume it’s going to do everything it can to protect its ability to keep collecting the raw material for that profit.

But recent questions put to Facebook by US Senator Josh Hawley reveal that Facebook is still not willing or able to share its plans on privacy relating to metadata collection and use.

In response to the senator, Kevin Martin, Vice President of US Public Policy at Facebook said:

[…] there are still many open questions about what metadata we will retain and how it may be used. We’ve committed to consult safety and privacy experts, law enforcement, and governments on the best way forward.

Chat, shop, watch … and wait

You can now easily navigate straight to Groups, Marketplace and Watch on Facebook.
Screen shot June 4 2019

At a developer conference last month, Zuckerberg outlined his proposed changes: mainly, change the focus to communities and privacy, make messaging faster and encrypted, and transform the user experience.

The square logo is now a circle. There’s a lot of white space, and someone KonMari’d the title bar.

Shopping within Facebook is prioritised through the Marketplace feed, and you can watch shows and online videos in groups through the Watch function.

Facebook Messenger loads faster, the interface is cleaner and a dating service may soon be available in Australia.

What hasn’t changed is the core product: the capacity for Facebook to collect platform data and generate behavioural inferences for advertisers.




Read more:
Why are Australians still using Facebook?


The Conversation


Belinda Barnet, Senior Lecturer in Media and Communications, Swinburne University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.