The Australian Competition and Consumer Commission (ACCC) Chair Rod Sims has delivered a speech to the National Consumer Data Policy Research Centre on the consumer data right (CDR) and the digital platforms inquiry (DPI). The CDR will be rolled out first in the banking industry followed by the energy and telecommunications industries.

Photo by jesse orrico on Unsplash

By Anne Wardell, Regulatory Specialist, Compliance Quarter.

Consumer data right (CDR)

The consumer data right (CDR) was introduced by the government in November 2017. Following the Open Banking Review, the Treasurer announced that banking would be the first sector to which the CDR would apply. At the same time as the Final Report was released, the government released the Consumer Data Right Booklet. The Booklet contains the following useful summary:

The ACCC will have the lead role in overseeing the implementation of the CDR. The CDR will allow consumers to ‘safely share data, including transaction and product data, with trusted service providers, if they choose to do so’. Rod Sims states that it is important to understand what CDR is and what it is not. It is not ‘intended to be the one stop shop for regulation and control of consumer data. Privacy rules and frameworks will continue to be the primary tools to address current and emerging privacy issues’.  Consumers will not be forced to share their data, but rather it can only occur with the consumer’s express consent.

‘Open Banking is also not Open Data. Open Banking will be a defined system whereby data holders will share specified data with trusted users, at the customer’s request, with the customer’s consent, and in accordance with uses the customer has specified.  In contrast, Open Data is data that is freely available to everyone to access, use and republish as they wish, without restrictions (for example, the Australian Government makes thousands of datasets freely available to the public for download at data.gov.au)’.

The first phase will commence on 1 July 2019 and will involve all major banks making data available on credit and debit card, deposit and transaction accounts on that day and on mortgages by 1 February 2020. Data on all remaining products recommended by the Open Banking Review will be available on 1 July 2020. All remaining banks will have a 12-month-delay in which to implement Open Banking. This means that Open Data is unlikely to be introduced in to the energy and telecommunications sectors before 2021. Although the government may decide to implement it earlier if the early adoption is successful.

The ACCC will have multiple roles as the regulator of the CDR including:

  • rule making;
  • accreditation of third party data receivers;
  • enforcement; and
  • consumer education.

The ACCC has created a dedicated Consumer Data Right Branch and it is proposed to publish a framework paper for public consultation in August 2018.

Digital Platforms Inquiry (DPI)

The ACCC has been investigating digital platforms since 4 December 2017 when a request for an inquiry was made to it by the government. The inquiry is in relation to the effect that digital search engines, social media platforms and other digital content aggregation platforms have on competition in media and advertising services markets.

‘The DPI covers a broad range of issues:

  • the impact of digital platforms on choice and quality
  • the extent to which the digital platforms are exercising market power in their dealings with media content creators and advertisers
  • the extent to which the DPs may benefit from an unfair competitive advantage due to the unequal treatment of regulation
  • and finally, the implications for consumers: are users of digital platforms adequately informed about the personal data collected and how it is being used?’

As part of the inquiry the ACCC released an issues paper and received a number of submissions. A copy of the issues paper and the submissions are available here.

In his speech, Rod Sims considered the impact of digital platforms on consumers and how these platforms collect and use data of individuals.

‘We are due to provide a preliminary report of our findings to the Treasurer by 3 December 2018, followed by a Final Report in June 2019.

There are a number of different outcomes that may eventuate, and part of what is exciting about this Inquiry is that we don’t yet know what our recommendations are likely to be.

Outcomes could be:

  • Increased transparency. The Inquiry is already generating increased awareness about some of the ways digital platforms monetise information they collect about consumers, and will ultimately provide greater transparency around these practices.
  • Recommendations to Government. The Inquiry may result in the ACCC making findings about relevant structural, competitive or behavioural issues relevant to digital platforms, and make practical recommendations for change to industry and government.
  • Enforcement action. If the Inquiry identifies any behaviour that is causing consumer detriment and raises concerns under the Competition and Consumer Act 2010, the ACCC will also take action to address that behaviour’.

Mr Sims was of the view that an important part of the ACCC role in relation to both CDR and DPI is the ‘need to examine and ensure consumers benefit from the competitive provision of services and are adequately informed of, and agree to, the way in which their data is used and can be utilised to further their own interests’.

A copy of the full speech is available on the ASIC website here.

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