Regulation of Digital Platforms as Part of Economy-Wide Reforms to Australia's Failed Privacy Laws (Australian Privacy Foundation Submission to the Australian Government on Implementation of the ACCC's Digital Platforms Inquiry—Final Report)

25 Pages Posted: 3 Sep 2019 Last revised: 29 Oct 2019

See all articles by Graham Greenleaf

Graham Greenleaf

University of New South Wales, Faculty of Law

David F. Lindsay

UTS: Law

Bruce Arnold

University of Canberra

Roger Clarke

Xamax Consultancy Pty Ltd; University of New South Wales (UNSW) - Faculty of Law; Australian National University (ANU)

Katherine Lane

Not affiliated

Nigel Waters

University of New South Wales (UNSW) - Faculty of Law

Elizabeth Coombs

University of Malta

Date Written: September 10, 2019

Abstract

This is the final submission to the Australian Government by the Australian Privacy Foundation (APF) on the final report of the Australian Consumer & Competition Commission (ACCC) Report on regulation of digital platforms.

APF welcomes the contribution made by the ACCC to improving the understanding of how the protection of privacy is central to addressing anti-competitive concerns and consumer protection in the data economy. APF's primary focus in this submission is on the consumer privacy aspects of the Inquiry, but with an eye to the issues of market power, and the trust that is fundamental for public administration in online environments. The APF strongly supports the ACCC's analysis and recommendations, across the board. ACCC’s analysis is consistent with a wide range of Australian and international official and private reports over the past three years, demonstrating that there is international recognition of a substantive problem that must be addressed. In particular, APF urges the Government’s adoption of the recommendations in Chapter 7 to achieve vital and substantial upgrades in Australia’s privacy protection, in order to address the major inroads into privacy because of the enormous growth in data surveillance by the private sector since 2000, the pressing need for a more powerful and much more effective Privacy Commissioner, and to achieve the privacy right of action previously recommended.

For reasons detailed in this Submission (and summarised at its end), APF expresses its strong support for the adoption by the Australian Government of all of the following Recommendations:

16: Strengthen protections in the Privacy Act

(a) Update ‘personal information’ definition

(b) Strengthen notification requirements

(c) Strengthen consent requirements and pro-consumer defaults

(d) Enable the erasure of personal information

(e) Introduce direct rights of action for individuals

(f) Higher penalties for breach of the Privacy Act

17: Broader reform of Australian privacy law, having regard to:

1. Objectives

2. Scope

3. Higher standard of protections

4. Inferred information

5. De-identified information

6. Overseas data flows

7. Third-party certification

18: OAIC privacy code for digital platforms, including but not limited to:

1. Information requirements

2. Consent requirements

3. Opt-out controls

4. Children’s data

5. Information security

6. Retention period

7. Complaints-handling

19: Statutory tort for serious invasions of privacy

20: Prohibition against unfair contract terms

21: Prohibition against certain unfair trading practices

Keywords: data protection, privacy, competition law, Australia, platforms, ACCC

Suggested Citation

Greenleaf, Graham and Lindsay, David F. and Arnold, Bruce and Clarke, Roger and Lane, Katherine and Waters, Nigel and Coombs, Elizabeth, Regulation of Digital Platforms as Part of Economy-Wide Reforms to Australia's Failed Privacy Laws (Australian Privacy Foundation Submission to the Australian Government on Implementation of the ACCC's Digital Platforms Inquiry—Final Report) (September 10, 2019). UNSW Law Research Paper No. 19-83, Available at SSRN: https://ssrn.com/abstract=3443337 or http://dx.doi.org/10.2139/ssrn.3443337

Graham Greenleaf (Contact Author)

University of New South Wales, Faculty of Law ( email )

Sydney, New South Wales 2052
Australia
+61 2 9385 2233 (Phone)
+61 2 9385 1175 (Fax)

HOME PAGE: http://www2.austlii.edu.au/~graham

David F. Lindsay

UTS: Law ( email )

15 Broadway Ultimo
PO Box 123
Sydney, NSW 2007
Australia

Bruce Arnold

University of Canberra ( email )

Canberra, Australian Capital Territory 2601
Australia

Roger Clarke

Xamax Consultancy Pty Ltd ( email )

78 Sidaway St
Chapman, ACT 2611
Australia
+61 2 6288 1472 (Phone)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

Australian National University (ANU) ( email )

Canberra, Australian Capital Territory 2601
Australia

Katherine Lane

Not affiliated ( email )

Nigel Waters

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

Elizabeth Coombs

University of Malta ( email )

Msida MSD 2080
Msida MSD 06
Malta

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