How Digital Platforms Affect the Retail Sector

How Digital Platforms Affect the Retail Sector

Did you know the Australian Competition and Consumer Commission (ACCC) is undertaking an inquiry into digital platforms? The ACCC have published our submission to their initial report, outlining our thoughts and concerns about the impact of digital platforms on the Australian retail industry. You can read our submission at on the ACCC website.

The initial report addresses many issues and recommendations surrounding the influence and impact of digital platform giants, such as Google and Facebook. Our submission focuses on three main areas; discrimination by digital platforms in the realm of advertising, copyright take-down procedures and proposed changes to unfair contract terms.

Advertising discrimination by Digital Platforms

Digital platforms Google and Facebook have a near monopoly over the online advertising market, giving retailers little to no bargaining power over advertising terms. Further to this, digital platforms have incentive to favour their own related businesses, causing Australian retailers to suffer.

We endorse the ACCC recommendation to introduce a regulatory body to monitor, investigate and report discriminatory conduct engaged in by digital platforms. This body would help to bring transparency and clarity for consumers and Australian retailers.

Copyright take-down procedures

The ACCC addressed the issue of unclear and insufficient digital platform takedown policies and guidelines for copyright infringements. We submitted that this is a major issue for Australian retailers when trying to remove any infringing or potentially infringing content. Further, we suggested that this issue is extended to address takedown policies and guidelines for trade marks and design rights.

We understand that many retailers struggle to enforce their intellectual property rights against infringing parties, extending to removal of scamming or fraudulent pages. Lack of access to means of enforcing intellectual property rights, can cause retailers significant damage to the goodwill of the business and devalue Intellectual property.

The ACCC recommended a short-term solution to introduce takedown standards for copyright infringement pending a broad future inquiry by the ACCC. We submitted that this suggestion be extended to cover trade mark and design infringement, as well as scamming and fraudulent pages.

We also submitted that a separate regulatory body could be introduced in the long-term to deal with the above issues and provide an avenue of appealing a digital platform’s infringement decision.

Unfair contract terms

To address the concern of digital platforms implementing unfair terms into their privacy policies and other standard form contracts, the ACCC have recommended that unfair contract terms be illegal. Currently, unfair contract terms are voidable meaning that they are not enforceable. We disagree with this recommendation and submitted to the ACCC that it could be detrimental to Australian retailers.

It is often unclear whether a term would be considered unfair by the court or protecting a legitimate commercial interest. The analysis for determining this is subjective, as such illegality of such terms would be overly onerous. Furthermore, we submitted that unfair terms are already voidable under the law, giving consumers and small businesses protections from these provisions.

If you need assistance in reviewing you relationship and contracts with digital platforms, do not hesitate to contact me at rosalyn@gladwinlegal.com.auor give me a call on 1300 033 934 for a no-obligation quote.

SourceACCC website