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News Plus 15 Mar 2021 - 3 min read

Don't think you've dodged a bullet: Data lawyer warns marketing industry on 'five fallacies' to face as ACCC dives deeper

By Brendan Coyne - Editor

Peter Leonard: "There is a lot of signalling going on...you need to get involved now if you want to shape an outcome and cause the ACCC not to recommend things that you don’t want to happen.”

Australia’s digital ad industry needs to get its head out of the sand on data privacy – fast. Agencies that think they have dodged a bullet in the latest preliminary report from the ACCC may also find they are sorely mistaken, says data lawyer and Professor of Practice at UNSW Business School, Peter Leonard. The government, he says, is backing its regulators to the hilt and there is major change afoot.

What you need to know:

  • News media bargaining code evidence that government is prepared to back regulators to take on big tech, per tech and data lawyer, Peter Leonard. 
  • He warns that ACCC has a habit of biting harder in final reports than interims and outlined "five fallacies" at Ashton Media's Programmatic Summit:
  • Australia will follow the EU lead.
  • Market power is illegal so the ACCC will fix it.
  • Consumer privacy is the enemy.
  • If I don't identify the consumer I can deal with information about them.
  • Agencies dodged a bullet.

Too many of you have had your heads in the sand for too long. You put up with bad data governance around management of cookies – and your time has come.

Peter Leonard, Principal, Data Synergies

Australia’s digital ad industry needs to get its head out of the sand on data privacy because change is coming fast, according to data and technology lawyer, Peter Leonard.

He thinks the news bargaining code is evidence government is backing regulators to go hard – and is prepared to properly fund fights against well-resourced global companies. Google and Facebook could see judgments in their data privacy cases handed down by the Federal Courts before the year is out, suggested Leonard, and the ad industry might be in for some surprises when the digital ad services final report lands in a few month's time.

Time’s up

Australia marketing industries “have been behaving like ostriches on data privacy,” Leonard told Ashton Media’s Programmatic Summit. “Too many of you have had your heads in the sand for too long. You put up with bad data governance around management of cookies – and your time has come.”

Meanwhile, “over at the ACCC, things are really cooking,” added Leonard. Now government is not just listening to the regulator, but acting.

“Lots of us thought the news bargaining code would never happen: A pretty gutsy political move by the Australian government, something that hasn't been done anywhere else in the world. So when the ACCC said it, lots of us discounted it. Guess what? We had to eat humble pie. The government accepted that recommendation – and they did it,” said Leonard. “Don't underestimate the ability of the ACCC to get the government to do things.”

Irregular apocalypse

The regulator is also highly effective in signalling what it wants industry to fix, under the threat of regulation, said Leonard, underlining that ACCC final reports have a history of being quite different to interim reports.

Leonard, a former global chair of the International Bar Association’s Technology Committee, said he had never seen the ACCC be so “non-specific” about market problems in its digital ad services interim report.

“For the ACCC to be as open and undecided in an interim report about what their final recommendations might be is highly unusual,” said Leonard.

“There is a lot of signalling going on – and I don’t think all the action will happen in the reports … You might think that there is not a lot to be done until the final report comes out. That would be a wrong way of thinking.

“You need to get involved now if you want to shape an outcome and cause the ACCC not to recommend things that you don’t want to happen.”

If industry and regulators cannot come up with working privacy compliant solutions to data and advertising, “there is a danger that the data will disappear behind closed platforms or into wall gardens, such as potentially the Google privacy sandbox, Apple's iOS 14.5 [changes] and [similar to] what happened with Facebook custom audiences, when you could no longer upload those audiences created out of third party data,” said Leonard.

“So walled gardens are a very real possibility in reducing competition further if the industry doesn't help to sort it out.

“The way to sort it out is around governance. Good data governance in the digital advertising sector and adtech is absolutely critical to where the world needs to go.”

Telco template

Leonard highlighted Australia’s now competitive telco industry as an example of where regulation may head via data separation and interoperability, the “two big sleeper issues that the ACCC has not yet got their heads around”.

“They are potentially solutions for many of the issues around verification and attribution in this industry and as it were, clipping the wings of organisations that enjoy advantages through vertical and horizontal integration,” added Leonard.

“I cut my teeth in telco industry deregulation back in the nineties – and I can tell you that Optus wouldn't exist today were it not for data separation and data control and interoperability requirements that the regulator enforced upon Telecom Australia.

“So there is an example of an industry that was created through data separation, data controls and interoperability requirements."

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