Published on the 13/10/2022 | Written by Heather Wright

Two countries, two takes on big tech regulation…

The launch of another Australian inquiry into big tech has highlighted again the differences in Australia and New Zealand’s approaches to reining in big tech.

The Senate has launched a ‘broad ranging’ inquiry into the role of international big tech platforms in exerting power and influence over markets and public debate. 

“We should not seek to turn back the clock or descend into protectionism. Big Tech platforms can and should be our partners.”

The Big Tech inquiry, to be conducted by the Senate Economics References Committee, will scrutinise these key areas: 

• market shares across hardware and software
• vertical integration and the outcomes on users’ ability to exercise choice
• whether the algorithms used lack transparency and are manipulating users and contributing to greater concentrations of market power
• the collection and processing of childrens’ data.

The adequacy and effectiveness of recent regulation attempts both locally and internationally will also be considered along with broader impacts of market power on consumers, competition and macro-economic performance, along with potential solutions. 

It’s one of several inquiries Australia has conducted into big tech which have brought about a range of recommendations and indeed changes and fines, with the country among the leaders in pursuing platforms and attempting to hold them accountable. 

The Australian Competition and Consumer Commission’s (ACCC) five-year Digital Platform Services Inquiry, which continues until 2025, and the earlier Digital Platform Inquiry have resulted in sweeping recommendations on how to regulate big tech, and a number of changes. The Digital Platform Services Inquiry is currently focussed on assessing the use of misleading environmental and sustainability marketing claims and fake or misleading online business reviews.

Globally big tech has found itself under regulatory scrutiny with an array of concerns including monopolistic behaviour, algorithm usage and impact and the collection and monetisation of data.

The European Union inked a deal earlier this year for new legislation under the Digital Services Act, which aims to protect users’ rights online, and the Digital Markets Act, which aims to create ‘fair, open online markets’, providing a rulebook for online platforms.

In the US, Congress has been looking at proposed legislation including the Digital Platform Commission Act 2022 to provide oversight and regulation of the platforms, while the UK’s proposed Online Safety Bill, requiring tech companies to protect users from illegal and harmful content, is expected to return to Parliament soon.

But legislation is just one part. Australia has also managed to hold big tech – or at least Google – to account at least once.

In August, following action by the ACCC, the Federal Court ordered Google to pay AU$60 million for misrepresenting to Android users that the ‘Location History’ setting was the only setting affecting whether Google collected their personal location data.

In reality, a second setting – Web & App Activity – was also enabling collection of data and was turned on by default, even when Location History was off, enabling Google to amass personal location data to target ads.

The $60 million penalty was the first public enforcement of the ACCC Digital Platforms inquiry and among the largest levied for breaches of Australian consumer law in recent history.

But despite calls for similar action in New Zealand, nothing has been forthcoming.

While the very actions which got Google its AU$60 million penalty also occurred in New Zealand, the Commerce Commission has said only that it has ‘followed with interest’ the Digital Platforms inquiry and the action coming out of it. No action, and no financial penalties, are underway or likely and the Commission has previously said it doesn’t have the resources to carry out such a large project.

Publishers were granted permission to engage in collective bargaining with Meta and Google earlier this year on the back of Australian action a year earlier to enable similar. Without the permission, collective bargaining arrangements would have risked breaching competition laws.

Addressing the imbalance in bargaining power between digital platforms and news businesses was one of 23 recommendations to come out of the final report from the ACCC’s 2019 Digital Platforms Inquiry (as opposed to the Digital Platforms Services Inquiry currently underway).

New Zealand had the opportunity to lead the world in reining in big tech after the Christchurch attacks, when outrage against the platforms’ behaviour surged. It’s an opportunity that appears to have been squandered, with the country taking a carrot, rather than stick approach (or perhaps the infamous ‘be kind’ approach of Covid – while continuing to attempt to woo some of the big players to New Zealand for data centre construction projects). 

Globally, New Zealand’s contribution has been focused around the Christchurch Call. It’s latest action was to announce a US$1.5 million joint research project with Microsoft and Twitter into the impact of algorithms. It’s a project that doesn’t include big players such as Facebook, Google or TikTok.

InternetNZ’s Andrew Cushen recently noted that the Christchurch Call has been important in highlighting the urgency of tackling terrorist and violent extremist content online, but that there is a lot more to do to implement the Call’s commitments and help communities have a stronger voice in how that happens.

Meanwhile, the Aotearoa Code of Practice for Online Safety and Harms joint agreement between Meta, Google, TikTok, Amazon and Twitter, along with Netsafe and NZTech has been branded a weak attempt to preempt regulation and a ‘Meta-led effort to subvert a New Zealand institution so that they can claim legitimacy without having done the work to earn it’.

The code of practice aims to prevent hate speech, disinformation and bullying and harassment, but is self–regulated and not legally binding.

In announcing the new Big Tech Inquiry, Australian Senator Andrew Bragg said the big five international tech platforms have amassed more power than any other corporations in recent history, including the railroads and oil tycoons of the Gilded Age.

“Australia’s Parliament must form a stronger view on what the enormous concentration of power through vertical integration and meshing of hardware and software means for our country,” Bragg says.

While technology has delivered great benefits, and been an enabler of new services for all Australians, he says the policy settings must be in place to protect users and ensure Australians aren’t being exploited.

“We should not seek to turn back the clock or descend into protectionism. Big Tech platforms can and should be our partners in protecting Australians and our interests,” Bragg, who dubbed the inquiry ‘overdue’ says.