On the Australian Competition & Consumer Commission Digital Platform Services Inquiry's Discussion Paper for Interim Report No. 5: Updating Competition and Consumer Law for Digital Platform Services, Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University

Abstract

The Discussion Paper, intended to guide the ACCC toward the recommendations in the ongoing Digital Platform Services Inquiry, suggests consideration of a wide variety of sweeping changes in Australian competition-law enforcement and the enactment of additional regulations in regard to social media services, online private messaging services, app stores, electronic marketplaces, and other “digital platform services.” These include requirements for data portability, interoperability, sharing and access, and limitations on data use. Other requirements may affect customer dispute-resolution procedures and require increased transparency regarding algorithms, as well as price and terms of service. Finally, the Discussion Paper suggests profound changes in Australian law and procedure involving merger control, including institution of compulsory notification above specified thresholds, reversal of the burden of proof in acquisition matters, lowering the current standard of proof of anticompetitive effect by construing “likely” to mean “a possibility that is not remote,” adoption of structural presumptions in acquisition matters, among other similar changes. The GAI Comment asks the ACCC to follow Australian Government policy in applying cost-benefit analysis to these proposed changes and argues that for the most part the evidence and analysis presented thus far in the Inquiry do not meet the applicable standard required to suggest a need for reform.

Keywords: Australian Competition & Consumer Commission, ACCC, Australian Competition Tribunal, digital platform services, competition law, competition policy, antitrust, social media, app stores

JEL Classification: K2, K20, K21