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Australia beats NZ to the punch on big tech

New Zealand could have led the world on regulating social media after the Christchurch attacks. Instead, it is Australia which has moved first with wide-ranging proposals to regulate Facebook, Google and Twitter hard on hate speech, privacy, fake news, monopolistic behaviour and sharing revenues from news. Marc Daalder reports. 

Australia's commerce and consumer watchdog has released a set of sweeping recommendations on how to regulate big tech. Among the suggestions are calls for an outright ban on all unfair contract terms and the creation of codes of conduct for fighting disinformation and interacting with traditional media organisations.

Although the Australian Competition and Consumer Commission (ACCC) was only tasked with considering the impact of social media companies and search engines on competition in the media and advertising markets, it has released a wide-ranging report that challenges tech companies on three fronts: competition; privacy; and platform misuse (such as for fake news or hate speech).

The report came just days after the United States Justice Department announced an investigation into alleged anti-competitive behaviour by technology companies. In April, the United Kingdom released a white paper proposing radical restraints on internet conglomerates. But in New Zealand, beyond the ambitious 'Christchurch Call' to stop the promotion of violent and terrorist content on social media, little has been done to hold tech companies to account.

Call for Commerce Commission involvement

Internet NZ Chief Executive Jordan Carter thinks that the Commerce Commission should "make a study along similar lines to the ACCC report".

"In the competition realm, apart from the NZME/Fairfax merger case, there hasn't been a lot of consideration" of big tech's role in the media market in New Zealand, he said. But a report like that issued by the ACCC was needed before informed regulatory decisions could be made.

"What's really good about the ACCC paper is that they have taken a really broad look at this," Carter said.

The regulator's recommendations include a revamped media regulatory framework that acknowledges some tech companies should be treated as media companies. The ACCC also said certain tech companies should develop codes of conduct in partnership with the Australian Communications and Media Authority (ACMA).

These guidelines would mandate the sharing of data with news organisations, a heads up when algorithms determining how news is displayed on platforms would change, revenue-sharing agreements when digital platforms profit off news products, and prohibiting impeding "news media businesses’ opportunities to monetise their content appropriately on the digital platform’s sites or apps".

The watchdog also took aim at big tech's anti-competitive practices. One recommendation called for changes to merger law and another demanded that tech companies notify the ACCC prior to any new acquisitions or mergers.

Australia has also hopped on Europe's anti-Google Chrome bandwagon, mandating that the company provide all Australian users of Android devices with a range of browser and search engine options, instead of defaulting to Chrome and Google Search. The ACCC was asked by the Australian Government in December 2017 for the report, which has morphed to focus more on such issues as fake news and hate speech in the wake of the Christchurch attacks.

Prime Minister Jacinda Ardern has taken a carrot rather than stick approach to the social media giants so far, saying she preferred to work with them rather than penalise them.  

"Trying to encourage greater innovation and research to try and prevent that sort of material spreading so easily is where we wanted to put our efforts as a country," she said in mid-July.

Commerce Commission just watching

In response to the release of the ACCC report, a Commerce Commission spokesperson told Newsroom, "The Commission noted with interest the ACCC’s Digital Platforms inquiry which was released on Friday. This was a Government directed inquiry in Australia, and no such inquiry has been directed here," the spokesperson said.

"We will watch the response of the Australian Government to the ACCC’s recommendations with interest and continue to monitor developments and discussion on this issue in other countries as well."

Commerce Minister Kris Faafoi was unavailable for comment, as he is travelling with the Prime Minister in Tokelau, where his parents were born.

Prison sentences and fines?

Australia also acted much faster than New Zealand on outlawing the hosting of violent content. It passed legislation to punish social media companies and executives with fines and prison sentences for hosting violent content. Ardern has shied away from a punitive approach.

"As a starting point, we're doing something that no other country has done before, and it's not just to look at regulation, fines, imprisonment, but instead to say 'what can we do to try and prevent this kind of content being spread so easily online?," she said in mid-July

Internet NZ's Carter described the Australian law as “a kneejerk reaction in the course of an election campaign”.

Privacy and fake news also a concern

In addition to tackling big tech's role in the media marketplace, the ACCC issued a number of recommendations on how to protect consumer privacy and cut down on disinformation. Chief among these was the reform of Australia's Privacy Act, to strengthen notification and consent requirements and enable people to erase their own data.

A new code of conduct for digital platforms created by the Office of the Australian Information Commissioner would also be enforced.

John Edwards, New Zealand's Privacy Commissioner, congratulated the regulator on the report. "I welcome Australia’s leadership in this area. Many jurisdictions are grappling with the issue of how to manage, mitigate and regulate the harms from digital platforms," he said.

"It is unlikely that the proposal will be without complexity and challenges, but no doubt constitutes the start of an increasingly important discussion. At over 600 pages we have not yet been able to conduct a detailed analysis of the report, but we will be following the Australian progress with great interest."

The ACCC identified digital media literacy as an area in which many Australians struggle, which makes it easier for them to fall for fake news. The regulator proposed rectifying this by funding educational NGOs and adding digital literacy to the school curriculum.

Regulate fake news?

Another attempt to fight disinformation would empower the ACMA to regulate fake news on digital platforms used by more than 1 million Australians, such as Facebook, Twitter, or Google.

While New Zealand has taken a stand against hate speech and terrorist content on social media with the Christchurch Call, "the current legislative picture in New Zealand is a patchwork with big holes in it," said Kathy Errington, Executive Director of the Helen Clark Foundation.

In May, the Foundation released a report on harmful content on social media. "A lot of our existing legislation predates the existence of social media and the parts that don't contain exemptions for social media platforms. There are at least five agencies that have a role in regulating social media in New Zealand but none of them really have a full mandate to do it. No one is really set up to deal with social media platforms."

New Zealand is falling behind in this regard as well. The ACCC recommended the creation of a new digital platforms branch of the regulator, while the Commerce Commission in New Zealand has yet to begin an inquiry into big tech at all.

Nonetheless, New Zealand has a lot of sway in this arena, Errington said. Even though tech companies are headquartered in Silicon Valley, with regional branches directed out of Sydney, since Christchurch, New Zealand has become the centre of gravity on the issue of social media regulation.

"A lot of people are paying attention to us now and they'll pay attention to what we do," said Errington.

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