Consumer and fair trading issues relating to digital economies and platforms have remained a key enforcement priority for the ACCC throughout 2024. Continuing its “no wrong door approach” the ACCC has continued to collaborate with regulators, such as the Office of the Australian Information Commissioner (OAIC) to ensure that all consumers receive support, regardless of the channel through which they lodge a report or complaint.

The ACCC has also advanced its Digital Platforms Services Inquiry (the Inquiry), releasing its eighth and ninth report, with the final report expected to be finalised in March 2025. Notably, the eighth report highlighted the ACCC’s strong support for enhanced privacy measures, emphasising that privacy related issues in the digital economy are best addressed through stronger regulation. Finally, while the Australian Government released its plan to update and reset the Consumer Data Right (CDR) regime (overseen by the ACCC) to bring about the long-awaited action initiation to the CDR, there has not been much progress on this measure.

Enforcement priorities

The ACCC has continued to focus on its enforcement priority of consumer and fair trading issues relating to manipulative or deceptive advertising and marketing practices in the digital economy, as well as competition and consumer issues relating to digital platforms in 2024. This focus is evident through the ACCC’s statements regarding ongoing concerns arising from the expansion of large digital platforms and its investigation into Google’s commercial arrangements to have its search engine preferenced by major search browsers like Chrome. While the investigation is still ongoing, the US Department of Justice’s case against Google’s default agreements is due for hearing on relief in early 2025. As the ACCC prepares to release its tenth and final report, which will address recent international regulatory and legislative developments in digital platform markets and their implications for competition and consumers, the outcome of the US case will likely be a key consideration for the ACCC and for potentially shaping Google's future position in Australia.

Major developments and activities

Digital Platforms Services Inquiry

Last year, the ACCC released the eighth and ninth interim reports for the Inquiry. The Inquiry arose out of the ACCC’s Digital Platform Inquiry Final Report in 2019 and is examining a broad range of competition and consumer law issues connected with digital platform services, digital advertising services and data services. In particular:

• The eighth report (released in March 2024), considered potential competition and consumer issues in the supply of data products and services by data firms in Australia. The report underscores the ACCC’s strong support for the implementation of enhanced privacy measures to empower consumers, protect their data and better support the digital economy. The ACCC concluded that specific privacy related issues are best addressed (in the first instance) through the introduction of more robust privacy laws. Towards the end of 2024, the Australian Government passed its first tranche of reforms to the Privacy Act 1988 (Cth).
• The ninth report (released in December 2024) revisited competition and consumer issues in the supply of general search services having regard to overseas reforms, technological advances and evolving trends in search quality. The report reflects upon the increased use of generative AI in search engines, noting that while it may usher in a new era of more relevant, efficient and intuitive search, it could also present challenges for consumers seeking credible, reliable, unbiased and verifiable information.

Generative artificial intelligence (AI)

As mentioned, generative AI has emerged as a prominent global topic, attracting significant attention from regulators worldwide. Earlier this year, the European Commission, UK Competition and Markets Authority, US Department of Justice and US Federal Trade Commission issued a joint statement on competition in generative AI foundation models and AI products. The ACCC has also expressed interest in this emerging issue, with Ms Cass-Gottlieb noting:

“We are following recent developments in generative AI closely. Adoption has been extensive, and this technology continues to expand and develop at a rapid pace. Generative AI products and services may present new opportunities, but also new challenges with major implications for our work”.

Looking ahead, the ACCC seeks to understand the potential impact of generative AI on the competitive landscape, particularly in the context of general search services.

Consumer Data Right reset

In our 2023 ACCC Year in Review, we considered the recent developments to the CDR regime, which was first established by the Government in 2019.

Following from this, in August 2024, the Treasury Laws Amendment (Consumer Data Right) Bill 2022 received royal assent, after having been under consideration in Parliament since late 2022. The legislation marked a significant step in implementing “action initiation” under the CDR, allowing consumers to authorise service providers to initiate various actions on their behalf, including making payments, opening or closing accounts, switching providers and updating personal details across providers. However, while the action initiation framework is now legislated, it does not specify or permit specific action under the CDR. It is clear that further work is required to identify, consult and prepare rules and data standards that will implement the proposed action mechanisms.

Key enforcement

HSBC

Alleged breaches of CDR rules

HSBC Bank Australia Limited (HSBC) has paid penalties of $33,000 (without admitting liability) after the ACCC issued two infringement notices for alleged contraventions of the CDR rules. The breaches involved HSBC failing to comply with its obligation under the CDR regime by not:

• accurately and fully disclosing its fixed rate home loan interest rates when requested via the CDR; and
• accurately disclosing credit card account balance data when requested by consumers.

In its media release, the ACCC stressed the need for CDR data to be accurate:

“For the CDR to be effective, it is critical that CDR data is of high quality. This means that product data and consumer data - which a consumer has consented to share - must be accurate, up-to-date, complete, and in the required format.”

HSBC has cooperated with the ACCC’s investigation and have taken steps to improve its CDR compliance, including addressing data quality issues identified during the investigation.

Meta

Litigation continues

In August 2024, the Federal Court heard that the ACCC found more than half of the cryptocurrency ads analysed on Facebook to be deceptive or in violation of the platform’s policies. The ACCC claimed that Meta had been aware of the issue since at least January 2018 but had failed to take effective action to curb the spread of fraudulent ads. Despite implementing measures, such as a new requirement for advertisers to verify their phone numbers starting in June 2024, the ACCC remains doubtful that Meta's efforts address the wider problem of systemic fraud on its platform.

In the current Federal Court proceedings, Meta successfully sought to have certain parts of the ACCC’s case dismissed, resulting in an order for the ACCC to revise portions of its pleaded case. Although no hearing date has been set yet, the case is clearly significant, highlighting the growing expectation that companies like Meta should take more responsibility in preventing the spread of fraudulent content. One thing is certain though, the financial toll of these scams are substantial, with Scamwatch reporting over $13 million in losses from investment scams on social media in 2024 alone.

Telstra and Optus

Undertakings provided

The ACCC’s ongoing competition investigation into Google’s search services in Australia arose from its consideration of competition and consumer issues in the Inquiry. The third interim report of the Inquiry found that Google’s search engine, being pre-installed as a default search service on devices, contributed to its dominant position in the Australian market. The ACCC found significant consumer biases towards default settings.

The ACCC has accepted undertakings from Telstra and Optus, agreeing not to renew agreements that require them to pre-install Google apps on Android devices. The undertakings from Telstra and Optus have relieved the ACCC’s concerns regarding their involvement into the alleged anti-competitive conduct. In relation to this, the ACCC noted that:

“Practices such as entering into agreements to ensure exclusivity can limit consumer choice or deter innovation. Digital platforms with significant market power should be aware of their obligations under Australia’s competition laws.”

In 2024, it is evident that the ACCC’s litigation efforts faced significant challenges, particularly with ongoing cases involving Meta and Google, which we hope to see further developments in 2025.