Free Isn’t Free: Digital Platform Data Practices and Australia’s Unfolding Regulatory Response

Since the release of its Digital Platforms Inquiry Final Report in 2019, the ACCC has continued to be active in investigating digital platform market issues in Australia, including the collection and use of consumer data in exchange for the provision of “free” services. The ACCC has initiated a variety of enforcement actions before the courts relating to these services. However, these cases have not to date used Australia’s competition law but rather have been brought under consumer laws. This article explores whether current Australian competition laws are sufficient to address data issues or whether it is likely that, like their international counterparts, the ACCC may also move towards an ex-ante regulatory regime to govern digital platforms.

By Jacqueline Downes, William Georgiou & Melissa Camp¹

Consumers often exchange their personal data for “free” access to a digital service on one side of the market while the relevant digital platform sells that data (including after combining it with the consumer’s data across other services) to customers on the other side of the market. This multi-sided exchange has led to a variety of benefits. These include increased digital participation, economies of scale and innovations and efficiencies. However, such services are arguably not “free” in reality: because consu