Overview

The Competition and Consumer (Price Inquiry– Digital Advertising Services) Direction 2020 was introduced to address the need for a thorough investigation into the markets for the supply of specific digital advertising services. Enacted under section 95H of the Competition and Consumer Act 2010, the Direction was issued by the Treasurer to the Australian Competition and Consumer Commission (ACCC), requiring an inquiry into the pricing dynamics and competitive factors within these markets. The primary policy objective of this Direction is to promote competition by examining the practices and structures that influence the prices of digital display advertising services, digital advertising technology services, and digital advertising agency services. The ACCC has been tasked with investigating the intensity of competition, data collection practices, and contractual arrangements that may impact market participants' decision-making processes. The Direction mandates the ACCC to submit an interim report by 31 December 2020 and a final report by 31 August 2021, with restrictions on the public release of interim reports until authorised by the Treasurer.

Scope and Application

The Competition and Consumer (Price Inquiry– Digital Advertising Services) Direction 2020 is a legislative instrument made under section 95H of the Competition and Consumer Act 2010. It applies to the Australian Competition and Consumer Commission (ACCC), requiring it to hold a price inquiry into the markets for the supply of specified digital advertising services, including digital display advertising services, digital advertising technology services, and digital advertising agency services. The purpose of the inquiry is to promote competition in these markets by investigating and monitoring factors that influence prices. The inquiry will also consider the impact of suppliers' practices, such as data collection, management, and disclosures, as well as contractual arrangements and corporate structure. The Direction mandates the ACCC to provide an interim report by 31 December 2020 and a final report by no later than 31 August 2021, with the interim report not to be released for public inspection without the Treasurer's written authorisation. This Direction applies nationally across Australia and is not subject to disallowance or sunset provisions.

Key Provisions

The Competition and Consumer (Price Inquiry– Digital Advertising Services) Direction 2020 (the Direction) is an instrument made under section 95H of the Competition and Consumer Act 2010 (the Act). Section 95H provides that the Minister may require the Australian Competition and Consumer Commission (ACCC) to hold an inquiry into a specified matter or matters. The Direction requires the ACCC to hold a price inquiry into the markets for the supply of certain digital advertising services, including digital display advertising services, digital advertising technology services, and digital advertising agency services (section 4). The inquiry will support the Government's commitment to promoting competition in these markets. The ACCC must regularly monitor the intensity of competition among suppliers and consider practices that may impact competition or informed decision making by market participants (section 4(2)). The ACCC must provide an interim report by 31 December 2020 and a final report by no later than 31 August 2021 (section 4(4)). The Direction imposes several obligations on the ACCC in relation to the price inquiry. Firstly, the ACCC must conduct the inquiry in accordance with the terms of reference set out in section 4 of the Direction. This includes monitoring the intensity of competition among suppliers and considering suppliers' practices that may impact competition (section 4(2)). Secondly, the ACCC must submit an interim report to the Treasurer by 31 December 2020 and a final report by no later than 31 August 2021 (section 4(4)). Thirdly, the ACCC must not release any interim report for public inspection until authorised by the Treasurer in writing (section 4(5)). The Direction also provides that the ACCC has been consulted on the terms of the Direction in accordance with section 17 of the Legislation Act 2003 (section 5). There are no specific offences, penalties, or civil/criminal consequences for breach of the Direction. However, failure to comply with the Direction may result in legal action being taken against the ACCC by the Treasurer or other relevant parties. The maximum penalty for non-compliance is not specified in the Direction. The Direction is a legislative instrument for the purposes of the Legislation Act 2003, but it is not disallowable and does not sunset (see Legislation (Exemptions and Other Matters) Regulation 2015). The Direction commences the day after the instrument is registered. A statement of Compatibility with Human Rights is attached to the Direction, which confirms that the Direction is compatible with human rights as it does not raise any human rights issues.