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Speech by Nerida O’Loughlin, ACMA Chair, RIGA Stratcom dialogue May 2021

Setting standards and rules for a safer digital environment

Good morning everyone and thank you Gunta for the introduction.  

Thank you also to NATO for the invitation to participate in this morning’s dialogue. Although I’m unable to join you live this morning, I’m delighted to be able to share some of Australia’s recent experience.

My colleague Kelly Mudford will be joining the panel session live to participate in the discussion.

This morning, I would like to talk to you on the work underway in Australia to set standards and rules to address the impact of digital platforms and, provide some of our early findings on the importance of collaboration to address these challenging issues.

Online trends
In international forums, I often note that Australians are early and eager adopters of technology and digital services.

Our recent research found that 99% of Australian adults had used the internet in the previous 6 months to June 2020 – up from 90% in 2019. 72% used social networking sites or apps, such as Facebook.

Therefore, it’s not surprising that Australia, like other countries, has been increasingly turning our attention to the impact of these platforms on domestic communications and media markets.

DPI overview
In 2019, as many of you would know, Australia’s competition and consumer regulator – the ACCC – completed a major review into the business models of digital platforms and the consequences for competition, consumers, and society.

The ACCC found that while traditional media businesses are struggling to remain commercially viable, Facebook and Google enjoy substantial market power, receiving nearly two-thirds of all online advertising revenue in Australia. It also showed that digital platforms play an increasingly important role in the Australian content ecosystem, particularly impacting on the supply, consumption, choice and quality of Australian news and journalistic content.

These conclusions led the Australian Government to agree to a range of initiatives – with a significant program of work underway to simplify the existing media and content regulatory frameworks, level the playing field between online and offline content regulation, and address emerging online consumer harms.

The Australian Government has a strong focus on business-led solutions and ensuring that regulation does not inhibit innovation, jobs, and growth. Consistent with that approach, the government has encouraged digital platforms to voluntarily address 2 critical issues identified in the ACCC’s inquiry in the first instance.

Firstly, all major digital platforms were asked to voluntarily develop an industry code of practice to address concerns around disinformation and news quality in Australia.

Secondly, Facebook and Google were asked to develop a code to address the imbalance between news publishers and digital platforms.

Mis- and dis-information code
The ACMA was asked to oversee the disinformation code’s development, and report back to the government on the adequacy of platform measures.

In June last year, we released a public position paper to help guide the development of this code. The paper set out our expectations, as the regulator, of the objectives and scope of the code.

Importantly, we suggested the traditional ‘intent-based’ definition of disinformation may no longer be sufficient to address the breadth of this issue. Conspiratorial communities made up of ordinary users are peddling harmful content, malicious actors are getting better at hiding their tracks from content moderation tools, and evidence of inauthentic behaviour can take researchers months to uncover.

With the current and ongoing pandemic, we have seen the potential for these falsehoods to create real-world harm to both individual users and broader societal institutions.

Nearly two-thirds of Australians say they have encountered misinformation about COVID-19 on social media. And a variety of surveys, including upcoming research commissioned by the ACMA, have shown a concerning portion of the population believe dangerous falsehoods that have been circulating online.

But this is not just about the current health crises. As we have seen abroad, online mis- and dis-information campaigns can also do significant harm by undermining trust in democratic processes.

Code development
DIGI, the Australian industry group, has led the development of the code consulting with its members, industry participants and other interested parties.

In February, a final disinformation and misinformation code was released with 6 initial signatories – Facebook, Google, Twitter, Microsoft, TikTok and Redbubble. Earlier this week, Adobe announced it had signed up to the code.

All code signatories have committed to reduce the risk of harms that may arise from the propagation of disinformation and misinformation on their platforms. They are currently preparing initial reports about their voluntary commitments and documenting the measures they are undertaking to meet the outcomes under the code.

They are also working on a robust reporting guideline and finalising a mechanism to deal with code complaints.  

We will report to government on the adequacy of platforms’ measures under the code and the current state of disinformation in Australia next month. While I am not in a position today to foreshadow our findings, I will say we have been closely watching the developments in Europe, including the evolution of their pioneering disinformation code.   

Bargaining code
The Australian Government has also been working to address the bargaining imbalance between Australian news media businesses and the major digital platforms, Google and Facebook. As mentioned, the Australian Government would prefer that industry step-up and address issues of user or societal concern.

This means that all parties must be committed to action and have faith in the model.

If voluntary codes prove ineffective or unsuccessful in driving necessary change, the government may consider stronger regulatory measures for digital platforms.

We have already seen this play out with the development of the news media bargaining code. This was initially planned to be a voluntary code but, when progress stagnated, the government decided to make the code mandatory.

The news media bargaining code was contentious, with digital platforms opposed to the scheme. Once it became clear in February that the code was likely to pass through parliament, Facebook took action to temporarily ban access to news on their platform by Australian users, causing disruption to users and making international headlines. Further negotiations between the government and the platforms led to the bill finally passing on 25February.  

The code provides a framework for commercial negotiations between designated digital platforms and registered news media businesses. The Australian Treasurer has the power to designate platforms to participate in the code. The code also provides provisions for mediation and arbitration if parties cannot come to an agreement.

As the media regulator, we have been closely involved in the news business element of the code. We have the role of assessing news businesses seeking to participate in the code, and appointing mediators and arbitrators in some circumstances.

While some aspects of the code are yet to be enlivened, Facebook and Google have already reached agreements with many of the larger Australian publishers and other deals are currently being negotiated. Just last week, the ACCC authorised smaller publishers to collectively negotiate with Facebook and Google over payments for their news content.

This shows that the commitment by government to mandate a regulatory backstop is working as it should – incentivising parties to voluntarily come together, resulting in deals to help support the Australian news media industry.  

While these are 2 of the more prominent actions out of the Digital Platforms Inquiry, there is a range of other work underway in Australia. The government is considering whether obligations relating to Australian content should be placed on subscription-on-demand providers – such as Netflix. The ACCC is also looking closely at competition issues across the digital display advertising supply chain.

These too are issues facing both government and regulators in many countries.

In wrapping up, I’d like to discuss the importance of collaboration.

Digital platforms are run by some of the largest companies in the world, and concerns about their impact and influence are global in nature.

For smaller jurisdictions like Australia, there are unique challenges dealing with international companies. Their actions are generally set from the home base in another country, and it is hard to get results tailored to the unique characteristics of our market. However, the bargaining code process has shown that actions by small countries are taken seriously and can make a difference.

For many of us, digital platforms represent the regulatory coalface. In this environment, it is important that regulators continue to collaborate and work together – across sectors and internationally. Opportunities like today’s dialogue are important to share common experiences, successes and challenges.

It is also crucial that regulators actively engage with digital platforms. These companies have not traditionally been regulated, so there is added responsibility and challenge on us to educate and work with them on this journey.

An open dialogue can help the platforms to better understand where regulators are coming from. It also helps us to better understand platforms’ unique business models and what approaches they are taking to address government and society’s concerns.

As we continue our work towards implementing the Australian Government’s roadmap for digital platforms, I look forward to continuing to work together and find common ground to improve the online environment for all.

Thank you.

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