Digital Business in Australia: Overview | Practical Law

Digital Business in Australia: Overview | Practical Law

A Q&A guide to digital business in Australia.

Digital Business in Australia: Overview

Practical Law Country Q&A 7-620-6058 (Approx. 27 pages)

Digital Business in Australia: Overview

by Matthew Bovaird, Hamish Fraser, Thomas Jones and Belyndy Rowe, Bird and Bird
Law stated as at 01 Jun 2023Australia
A Q&A guide to digital business in Australia.
The Q&A gives a high level overview of matters relating to: regulations and regulatory, legislative and industry bodies for doing business online; setting up an online business; running a business online, including electronic contracts and e-signatures; implications of running a business online, including data protection, privacy protection and cybersecurity; rules relating to linking, framing, caching, spidering and metatags; jurisdiction and governing law; domain names; advertising and marketing; tax; protecting an online business and users; insurance; and proposals for reform.

Regulatory Overview

1. What regulations apply for doing business online (for business-to-business and business-to-consumer)?
In Australia, legal obligations and requirements for online businesses are contained in both legislation and common law principles. Legislation that may be of particular relevance includes the:
  • Corporations Act 2001 (Cth), which governs, among other things, the corporate structures that may be used when carrying on business in Australia, the regulations for running a company, obligations concerning business names, director duties, shareholder protections, reporting and other corporate governance matters.
  • Competition and Consumer Act 2010 (Cth), which governs competition, fair trading and consumer protection, and is designed to prevent anti-competitive conduct. The Australian Consumer Law (ACL), Australia's key consumer protection regime, is part of this Act.
  • Privacy Act 1988 (Cth) (Privacy Act), which regulates the collection, use, disclosure, security and other handling of personal information and rights in respect of personal information.
  • Spam Act 2003 (Cth), which prohibits the sending of unsolicited commercial electronic messages and prescribes consent and other requirements for sending electronic messages.
  • A New Tax System (Goods and Services Tax) Act 1999 (Cth), which contains the obligation of a business in relation to the imposition, collection and remittance of goods and services tax (GST) and sets out the circumstances in which a non-resident entity must pay GST on supplies of things done in Australia.
  • Multinational Anti-Avoidance Law (MAAL), which came into effect in December 2015 and provides a regime for the payment of tax on profits earned in Australia by certain multinationals.
  • Electronic Transactions Acts at the Commonwealth and State levels, which facilitate the use of electronic communications to formalise business and personal transactions online.
  • Online Safety Act 2021 (Cth), which regulates harmful online material such as cyber-bullying material or intimate images shared without consent. It also introduces basic online safety expectations and provides for the development of industry codes to regulate certain types of harmful online content.
The laws above are also supplemented by regulations that contain details to assist the implementation of the legislation.
2. What legislative bodies are responsible for passing legislation in this area? What regulatory and industry bodies are responsible for passing regulations and codes in this area?
Australia has three levels of government: federal, state or territory, and local. Online businesses must comply with laws made by all three levels of government (to the extent applicable).
Legislation in Australia, including any legislation dealing with online business, must be passed by the relevant Parliament (whether Federal or State Parliament). The Federal Parliament derives its powers from the Australian Constitution and is responsible for legislating in respect of specific subject areas such as corporations, taxation, and interstate and international trade.
To introduce any new or amended legislation relating to an online business, if the subject matter of the legislation falls within the power of the Federal Government, the new or amended legislation is proposed by way of a bill that is introduced to Federal Parliament. During its consideration, the bill will pass through successive stages at which proposals are made and the bill is debated. A bill must be passed in identical form by a majority vote in both the House of Representatives and in the Senate, and given Royal Assent by the Governor-General, in order to become an Act of Parliament and part of the law of the land.
  • Various regulatory bodies also have the power to introduce industry codes, guidelines or standards, which may be enforceable by a regulator or may rely on self-regulation.
The role of regulatory bodies is to investigate possible breaches of the law and to enforce the relevant legislation (and, where applicable, any industry codes) falling within the scope of its powers. These include the:
  • Office of the Australian Information Commissioner, which enforces the Privacy Act.
  • Australian Communications and Media Authority (ACMA), which enforces the Telecommunications Act 1997 (Cth), the Radiocommunications Act 1992 (Cth), and the Spam Act 2003 (Cth).
  • Australian Competition and Consumer Commission (ACCC), which enforces the Competition and Consumer Act 2010 (Cth).
If a regulator has an interest in a particular area, it can propose or advocate for legislative amendments or new legislation to deal with any concerns. Regulators are also given certain powers to develop, register and/or enforce industry standards and codes.

Setting up a Business Online

3. What steps must a company take to set up an existing/new business online?
Starting an online business often requires the following steps:
  • Selecting and establishing the appropriate business model (such as incorporating a company, registering as a foreign company in Australia, or forming a partnership).
  • Obtaining registrations necessary for the business, whether specific to the industry in which the business will operate (for example, financial service providers require an Australian Financial Services Licence), or general registration requirements such as registration for goods and services tax, workers compensation polices and any payroll tax registrations.
  • Structuring the operations to meet local legal requirements, including with respect to matters such as the collection of personal information (which may require a privacy policy) and sending commercial electronic messages.
  • Protecting the business (for example, through insurance cover, registering trade marks or implementing a data security system).
  • Acquiring assets to conduct the business (such as domain name licences, hosting agreements, and agreements for any goods or services to be sold by the business).
  • Establishing an accounting system and record keeping procedure to ensure compliance with applicable laws and to maintain a verifiable record of transactions.
  • Engaging support and assistance for establishing and maintaining the business, such as the services of employees or contractors to assist with the day-to-day operation of the business and legal and accounting services for advice in connection with all aspects of the business.
4. What types of parties can an online business expect to contract with?
Depending on the nature of the business conducted, in its early stages an online business can expect to contract with:
  • Web service providers, such as for the design, development and hosting of a website.
  • Content providers, where the content to be displayed on the relevant website is owned by a third party. Third-party content must be licensed.
  • Merchant facility providers and other online payment platforms, where the online business will be accepting payments online.
  • Landlords or licensors for the use of any premises.
  • Employees and contractors for services provided on behalf of the business.
  • Suppliers to the business, for stock or distribution of other goods.
  • Customers of the business.
If the online business intends to use a standard form consumer contract for its dealings with customers, the business must obtain advice to ensure the contract does not contain unfair terms.
Previously, under the ACL, an unfair term in a standard form consumer contract could only be voided. However, the Federal Government has now passed legislation which introduces penalties in respect of unfair contract terms. The reforms to the unfair contract terms regime will come into force in November 2023, and will prohibit making a contract with, and applying, relying on, or purporting to apply or rely on, an unfair contract term.
Under the amended law, a contract can still be classed as a "standard form contract" even where there is an opportunity for a party to:
  • Negotiate changes that are minor or insubstantial in effect.
  • Select a term from a range of options.
  • Another contract to negotiate terms of the other contract.
In determining whether a contract is a standard form contract, a court will also be required to consider whether one of the parties has made another contract with substantially similar terms, and how many contracts that party has made.
The reforms will also expand the scope of the unfair contract terms regime under the ACL to more small business contracts, and will apply where at least one party to the contract employs fewer than 100 persons or has an annual turnover of less than AUD10 million.
5. Is there any law or guidance that might affect the design of the website or app (for example, relating to access by disabled people or children)?
  • Various laws regulate online content in Australia and might affect the design of websites or apps. For example:
  • Website or app developers should be aware of the Online Safety Act 2021 (Cth), which has increased the accountability of online service providers for the online safety of their users. The Online Safety Act 2021 regulates:
    • cyber-bullying material targeted at children;
    • cyber-abuse material targeted at adults;
    • abhorrent violent conduct; and
    • the sharing of intimate images without consent.
    The Act also:
    • introduces basic online safety expectations;
    • provides for the development of industry codes to regulate certain types of harmful content online;
    • gives the e-Safety Commissioner new powers, such as to require internet service providers (ISPs) to block access to harmful content;
    • introduces a modernised "Online Content Scheme" to regulate illegal and restricted content (including on app distribution services and search engines).
  • There are also a range of criminal offences under the Criminal Code Act 1995 that can apply to providers of online services, such as:
    • failing to refer details of abhorrent violent material to the Australian Federal Police; or
    • failing to remove or cease hosting abhorrent violent material.
  • Developers of websites or apps relating to the provision of goods or services should also be aware that under the Disability Discrimination Act 1992, it is unlawful to discriminate against another person on the ground of their disability (for example by refusing to provide the other person with those goods or services).
  • In 2019, the government released an "Online Safety Charter" which outlines its expectations of online service providers.
  • Designers of websites or apps have obligations under the ACL, which, for example, prohibits businesses from engaging in unconscionable conduct or conduct that is misleading, deceptive, or likely to mislead or deceive.
6. What are the procedures for developing and distributing an app?
Australian law does not mandate any specific procedure for developing and distributing an app. Generally, to develop and distribute an app, an online business should:
  • Clarify the business strategy and objectives for distributing an app.
  • Consider the desired design, functionality and user experience of the app.
  • Enlist the services and support required to build and deliver the app.
  • Ensure appropriate contracts are in place, both for the app developers and users of the app, including any terms of use.
  • Review data collection processes and storage of personal information and the privacy policy of the business.
  • Determine the distribution channels for the app, such as whether the app is to be made available through a third-party app store.
The key issues to consider when entering into an app developer agreement include:
  • Confidentiality.
  • Timing for delivery of the app and ongoing support.
  • Any third-party content and/or software that is to be used (and obtaining appropriate licences).
  • Ownership of intellectual property rights in the app, including the source materials and any developer intellectual property rights.
  • Acceptance testing and assistance with obtaining the approval of any third-party app store (if applicable).

Running a Business Online

Electronic Contracts

7. Is it possible to form a contract electronically? Are there any limitations?
Under the Commonwealth Electronic Transactions Act and the corresponding legislation in the states and territories, a transaction is not invalid simply because it took place wholly or partly by means of electronic communications. In the light of this, it is possible to form a contract electronically.
Where a company forms a contract electronically, the recent amendments to the Corporations Act 2001 (Cth) via the Corporations Amendment (Meetings and Documents) Act 2022 allow companies to electronically execute company related documents such as contracts and deeds and to also sign meeting-related documents and provide those to their members. In jurisdictions where the common law paper rule has been abolished by statute (NSW, Victoria and Queensland), all deeds may be created and signed in a broad range of circumstances.
Where the formation of the contract requires signatures to be witnessed, some jurisdictions (WA, NSW, Victoria, Queensland, ACT and Tasmania) allow for the witnessing documents by audio-visual link and the witness can sign a copy of the document. Outside these jurisdictions, the witness must be physically present and the same document, not a copy, must be signed.

Requirements

There is no required format for an electronic contract. The requirements for electronic contract formation are the same as the requirements for hard copy contract formation. To form a contract, there must be evidence of:
  • A valid offer made by one party to another.
  • Unconditional acceptance of the offer by the other party.
  • An intention by all parties to be legally bound by the contract.
  • Valuable consideration for the promises made in the contract.
  • Certainty as to the terms of the contract.
If the formation of any click-wrap, browse-wrap or shrink-wrap contracts complies with the above requirements relating to hard copy contract formation, the click-wrap, browse-wrap or shrink-wrap contract will be valid and enforceable.
Cooling-off periods only apply to a limited number of transactions including some contracts for the purchase of land or property, certain contracts for motor vehicles and contracts with an agency to sell property. Where a cooling-off period applies to a particular type of contract, this period will be imposed regardless of how the contract is formed.

Limitations

Certain contracts must be in writing to be binding and, in the absence of any interim legislation, cannot be formed electronically, for instance unsolicited consumer agreements. Rules may vary between states.
8. What laws govern contracting on the internet?
Contracting on the internet is not expressly regulated in Australia. The Commonwealth Electronic Transactions Act and the corresponding legislation in the States and Territories govern electronic transactions and provide for certain contracts transacted electronically to be legally enforceable as written contracts.
9. Are there any data retention requirements in relation to personal data collected and processed through electronic contracting?
Any personal data collected and processed via electronic contracting must be retained and handled in accordance with the Privacy Act. For example, Australian Privacy Principle (APP) 11 requires certain entities to take measures to ensure the security of personal information and to actively consider whether they are permitted to retain such personal information.
Under the Commonwealth Electronic Transactions Act (and the corresponding legislation in the States and Territories), if a written document (such as an electronic contract) is required to be retained for a particular period, the requirement is taken to have been met if all of the following apply:
  • The method of generating the electronic contract provides a reliable means of assuring the maintenance of the integrity of the information contained in the document.
  • At the time of the generation of the electronic contracts, it was reasonable to expect that the information contained in it would be readily accessible so as to be usable for subsequent reference.
  • The electronic form of the document is retained on a particular kind of data storage device, if required by relevant regulations.
  • In respect of any electronic communications, information is retained that is sufficient to identify the origin and destination of the electronic communication and the time that the electronic communication was sent and received.
10. Are there any trusted site accreditations available to confirm that the website has complied with minimum cybersecurity standards?
There are no official government trusted site accreditations or certification marks for websites in Australia.
Certification is available to Australian businesses in accordance with ISO 27001, an international Information Security Management System Standard. This specifies the requirements and processes for measuring, planning, implementing, maintaining, reviewing and improving an organisation's information security performance and management system. A number of consultancy services are available to assist businesses with meeting the requirements of ISO 27001.
Certain private organisations also provide trusted site accreditations based on verification procedures and the payment of a fee. The verification procedures are determined by the organisation and can include matters such as an assessment of business registration and location, communication channels and payment processes.
11. What remedies are available for breach of an electronic contract?
The remedies available for breach of a contract apply generally, and do not differ for contracts whether formed online or offline. The appropriate remedies are determined by:
  • The nature of the contract.
  • Any remedies specified in the contract.
  • The nature of the breach.
The remedies sought by a party to the contract can include termination of the contract or damages in connection with the breach. These remedies are available regardless of whether the relevant contract was formed electronically or not.

E-Signatures

12. Does the law recognise e-signatures or digital signatures?

Applicable Legislation and Use

In Australia e-signatures are regarded as a subset of electronic signatures. Prompted by the need to digitally sign documents during the pandemic, state jurisdictions responded differently in permanently codifying the right to signing agreements and deeds electronically.
Under federal law, the Electronic Transactions Act (ETA) recognises e-signatures on documents in most instances, provided the document or transaction is subject to the laws of an Australian jurisdiction.
However, there are still some instances in which it is unclear whether an e-signature would be recognised or valid such as in the contract for sale of land or any interest in or concerning land.

Definition of E-Signatures/Digital Signatures

The term "e-signature" is not defined in the ETA. The legislation instead specifies the circumstances in which the requirement to obtain the signature of a person will be taken to have been fulfilled in relation to an electronic communication.

Format of E-Signatures/Digital Signatures

Rather than prescribing the format of an e-signature, the person receiving the e-signature can consent to any method or format that identifies the signee and is reliable in the circumstances. The ETA provides that where, under a law of the relevant jurisdiction, the signature of a person is required, the requirement is met in relation to an electronic communication if all of the following apply:
  • Identity: a method is used to identify the person and to indicate the person's intention in respect of the information communicated.
  • Reliability: the method used is either reliable and appropriate for the purpose for which the electronic communication was generated or communicated, or fulfils the functions described in ''Identity'' above as proven by itself or together with further evidence.
  • Consent: the person to whom the signature is required to be given consents to that requirement being met by the use of the relevant method.
  • In jurisdictions where the common law "paper rule" has been abolished under state legislation of an Electronic Transaction Act (NSW, Victoria and Queensland), a person can legally sign or have a deed signed electronically in a broad range of circumstances.
  • In other jurisdictions, such as South Australia, wet ink execution still applies for deeds.
  • Companies can also choose to execute contracts based on the Corporations Act (CA). The CA permits electronic execution or "split execution" in an agreement.
  • Deeds can also be signed electronically or through an authorised agent under the CA.
13. Are there any limitations on the use of e-signatures or digital signatures?
Certain contracts must be in writing to be binding and, in the absence of any interim legislation, cannot be formed electronically, including unsolicited consumer agreements (see Question 7).
  • Practical issues can arise where the formation of the contract requires signatures to be witnessed. This varies between jurisdictions. For instance, in Victoria, Queensland and New South Wales, the signing of a deed can be witnessed by audio-visual link subject to compliance with various procedural requirements.

Implications of Running a Business Online

Data Protection

14. Are there any laws regulating the collection or use of personal data? To whom do the data protection laws apply?
The Privacy Act is the key Australian legislation that regulates the collection, storage, use, disclosure, security and disposal of personal information, and the access to and correction of that information. The Privacy Act applies to the handling of personal information by most Australian Government agencies, private sector organisations with an annual turnover more than AUD3 million and certain small business operators (that is, organisations with a turnover of AUD3 million or less), such as health service providers, credit reporting bodies and businesses that have opted-in to the Privacy Act.
Privacy and data protection laws are also contained in other Commonwealth, State and Territory legislation and may apply depending on the type of:
  • Entity.
  • Business that is operated.
  • Information that is collected.
  • For example, ISPs and telephone service providers are also required to comply with the privacy protection provisions of the Telecommunications Act 1997 (Cth) and the Telecommunications (Interception) Act 1979 (Cth).
Other legislation, regulations and rules that confer rights or obligations relating to privacy include the My Health Records Act 2012 (Cth), the Health Care Identifiers Act 2010 (Cth) and the My Health Record Rule.
For further information on data protection laws in Australia, see Data Protection in Australia: overview.
15. How does the law define personal data or personal information?
The Privacy Act regulates the handling of "personal information". This is defined as any information or opinion about an identified, living individual, or an individual who is reasonably identifiable, whether the information is:
  • True or not.
  • Recorded in a material form or not.
The Privacy Act separately defines "sensitive personal information", which is a subset of personal information. Sensitive personal information includes health and genetic information as well as information or an opinion about certain matters including an individual’s racial or ethnic origin, religious beliefs, sexual orientation or practices, political opinions or associations, or criminal record.
The Privacy Act does not regulate business data or any other information that does not identify an individual or from which an individual is not reasonably identifiable.
16. Are there any limitations on collecting, storing or using personal data?
The Privacy Act contains 13 Australian Privacy Principles (APPs) that regulate the handling of personal information generally, including the collection and the use or disclosure of such information. Under the Privacy Act, when collecting personal data, an APP entity (as defined in the legislation) must:
  • Have a clearly expressed and up to date policy containing prescribed information.
  • Not collect personal information (other than sensitive information) unless the information is reasonably necessary for, or directly related to, one or more of the entity's functions or activities (where the APP entity is an "agency" under the legislation).
  • Not collect personal information (other than sensitive information) unless the information is reasonably necessary for one or more of the entity's functions or activities (where the APP entity is an "organisation" under the legislation).
  • Only collect personal information by lawful and fair means.
  • Only collect information about an individual from that individual, unless an exception applies.
  • Take such steps (if any) as are reasonable in the circumstances to notify the individual of certain matters, such as the:
    • identity and contact details of the APP entity;
    • purposes for which the information is collected; and
    • main consequences (if any) for the individual if all or some of the personal information is not collected.
Additional rules apply in relation to "sensitive information", which is information that is considered to be ''personal information'' and that also contains, without limitation:
  • Health information about an individual.
  • Information or an opinion about an individual's racial or ethnic origin.
  • Political opinions.
  • Religious beliefs or affiliations.
  • Sexual orientation or practices.
An APP entity must not collect sensitive information about an individual unless one of the following applies:
  • The individual consents.
  • The information is reasonably necessary for, or (in some cases) directly related to, one or more of the entity's functions or activities and certain other specified conditions apply.
The legislation does not contain specific limitations on the storage of personal data in the cloud. General security obligations apply, (regardless of where the information is stored), requiring the APP entity to take reasonable steps in the circumstances to protect the information from misuse, interference and loss, unauthorised access, modification or disclosure.
17. Can government bodies access or compel disclosure of personal data in certain circumstances?
A vast number of government bodies and regulators have the power to access or compel the disclosure of information related to its monitoring, regulation and/or enforcement activities. The rights of these government bodies and regulators are typically contained in legislation, setting out their roles, functions and powers. For example, under section 49(3) of the Australian Securities and Investments Commission Act 2001 (Cth), if the Australian Securities and Investments Commission (ASIC) reasonably suspects or believes that a person or business can give information relevant to a prosecution for an offence, the ASIC can order the individual or business to give all reasonable assistance (including the provision of personal information) in connection with the prosecution. Failure to comply with this notice is an offence.
In addition, the APPs contained in the Privacy Act provide that an APP entity (as defined in the Privacy Act) can use or disclose personal information where it reasonably believes that the use or disclosure is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body.
Under the Privacy Act, enforcement related activities include the prevention, detection, investigation and prosecution or punishment of criminal offences and intelligence gathering activities. A list of enforcement bodies is specified in the Act and includes government bodies that are responsible for policing, criminal investigations, and administering laws to protect the public revenue or to impose penalties or sanctions, such as the Australian Federal Police, Customs, the Immigration Department, and the Australian Securities and Investments Commission.

Privacy Protection

18. Are there any laws regulating the use of cookies, other tracking technologies like digital fingerprinting, or online behavioural advertising?
The use of cookies is permitted in Australia. Australia does not currently have laws requiring specific consent to the use of cookies or imposing express restrictions on the use of cookies.
While cookies do not typically contain personal information, if a cookie contains personal information or can be combined with other information so that it could reasonably be used to identify an individual, the use of the cookie may be subject to the Privacy Act.
Profiling and targeted advertising may attract further regulation in Australia if the Privacy Act is amended. In its Privacy Act Review Report, the Federal Attorney-General’s Department recommended increased obligations on handling personal information for direct marketing, targeting and trading purposes. If introduced, entities may need to allow individuals to opt out of their personal information being used or disclosed for direct marketing purposes, and from receiving targeted advertising.

Cybersecurity

19. What measures must contracting companies or internet providers take to guarantee internet transactions' security?
If an internet transaction involves the collection, disclosure or transfer of personal information by an APP entity (as defined in the Privacy Act), APP 11 (see Question 16) will apply. This requires the APP entity to take reasonable steps in the circumstances to protect the information from:
  • Misuse.
  • Interference and loss.
  • Unauthorised access.
  • Modification.
  • Disclosure.
If the internet transaction involves accepting, processing, transmitting or storing cardholder data in connection with a debit or credit card transaction, the online business must comply with the Payment Card Industry Data Security Standards (PCI-DSS). PCI-DSS compliance is expected of all Australian businesses, regardless of their size.
20. Is the use of encryption required or prohibited in any circumstances?
Encryption may be required within a particular industry or as a pre-requisite to providing services to certain customers (such as Government bodies). Generally, the use of encryption is not mandatory for all online businesses.
The Telecommunications Act requires carriage services providers (CSPs) (such as ISPs), to be able to encrypt, format and decrypt communication passing over the CSP's network or facility, in accordance with an interception warrant under the Telecommunications (Interception) Act 1979. CSPs are not responsible for decrypting communications that have been encrypted by a user or by an over-the-top communications provider.
21. Are electronic payments regulated?
Under the ACL, when imposing a surcharge on customers for making a payment using a credit, debit or prepaid card, the level of the surcharge must not be excessive. A payment surcharge is excessive if the surcharge exceeds the amount of the business' costs of acceptance for each designated payment type. For most merchants, these costs will be based on what they are charged for payments by their acquirer or payment facilitator and include:
  • Merchant service fees.
  • Fees paid for the rental and maintenance of payment card terminals.
  • Any other fees incurred in processing card transactions, including cross-border transaction fees, switching fees, and fraud related chargeback fees.
Certain additional types of costs paid to other providers can be included if they are directly related to accepting that particular card type. These are:
  • Gateway fees paid to a payment service provider.
  • The cost of fraud prevention services paid to an external provider.
  • Any fees paid for the rental or maintenance of card terminals paid to a provider other than the merchant’s acquirer or payment facilitator.
  • The cost of insuring against forward delivery risk.
The ePayments Code (Code) regulates consumer electronic payments in Australia such as:
  • ATM.
  • EFTPOS and credit card transactions.
  • Online payments.
  • Internet and mobile banking.
  • BPAY.
The Code provides a consumer protection regime for payment facilities by requiring effective disclosure of information to enable consumers to make informed decisions about:
  • Electronic payment facilities.
  • Rules for allocating liability for unauthorised transactions.
  • A complaints resolution procedure.
  • Compliance reporting obligations for subscribers.
The Code is a voluntary code of practice monitored by the Australian Securities and Investments Commission but most banks, credit unions and building societies subscribe to the Code.
22. Do any specific rules or guidance apply to websites aimed at (or that might be accessed by) children?
The Online Safety Act 2021 provides that social media services, relevant electronic services or designated internet services can be issued with a removal notice by the eSafety Commissioner in relation to any cyber-bullying material of an Australian child. For a notice to be issued, the material must first have been the subject of a complaint to the provider of the service and the provider must have failed to remove it within 48 hours of the complaint.
Australia has in place certain regulatory and self-regulatory codes governing the promotion of products to children. The codes have been developed to ensure that advertisers and marketers develop and maintain a high sense of social responsibility in such advertising and marketing.
The codes, which will apply when advertising online (including via a website) or when advertising an online business in any other media, include:
  • The Australian Association of National Advertisers (AANA) Code of Ethics which sets standards to ensure that advertisements and marketing communications are legal, decent, honest and truthful and have been prepared with a sense of obligation to the consumer and society and a fair sense of responsibility to competitors.
  • The AANA Code for Advertising and Marketing Communications to Children which has been adopted to ensure that advertisers and marketers develop and maintain the highest level of social responsibility in advertising to children.
  • The AANA Food and Beverage Advertising and Marketing Communications Code which will apply when advertising or marketing food or beverage products to any person who is 14 years old or younger.
  • The Responsible Children’s Marketing Initiative (RCMI) under which Companies participating in the RCMI publicly commit to marketing communications to children under the age of 12, only when it will further the goal of promoting healthy dietary choices and healthy lifestyles.
23. Are there any laws protecting companies within your jurisdiction that resell or market online digital content, services or software licences provided by a supplier outside the jurisdiction?
Australian law does not provide any specific protection to companies that resell or market online digital content, services or software licences provided by a foreign supplier. However, certain legislation such as the Competition and Consumer Act 2010 (and the ACL) are expressed to have extra-territorial effect, which may bring foreign suppliers within scope.

Linking, Framing, Caching, Spidering and Metatags

24. Are there any limitations on linking to a third-party website and other practices such as framing, caching and spidering?
Linking is generally acceptable and will not infringe copyright associated with the linked website or material. However, it is prudent to exercise care when deep-linking or framing to ensure that:
  • It is clear to a user that they are accessing third party content and third-party material.
  • Any third-party material is appropriately attributed.
  • Any notices or conditions applying to the third-party material are communicated to the user.
  • The deep-linking or framing otherwise complies with the terms of use of the relevant website. For example, if the terms of use contain a prohibition on the use of the website for any personal or non-commercial purpose, any deep-linking or framing that breaches such provision may amount to a breach of contract.
The Copyright Act does permit the copying or reproduction of copyright material for the purposes of caching or indexing, in limited circumstances, such as:
  • Allowing a temporary reproduction as part of the ''technical process of making or receiving a communication'' (sections 43A and 111A, Copyright Act).
  • Allowing a carriage service provider (or a system or network controlled or operated by it), to reproduce copyright material through an automatic process, in response to an action by a user to facilitate efficient access to that material by that user or other users (section 116AB, Copyright Act).
25. Are there any limitations on the use of metatags or advertising keywords?
  • Previously, the use of third party trade marks as part of a search engine optimisation strategy would not amount to trade mark infringement if a trade mark was used as a metatag.
  • However, more recent decisions have broadened the scope where a business competitor can be found liable for trade mark infringement if it uses another party’s registered trade mark within the website source code.
  • Unless a defence is provided, trade marks used in metatags can be considered to be "use" under the Trade Marks Act 1995 (Cth) because they become visible to those who searched the tag and will influence search results.

Domain Names

26. What limitations are there in relation to licensing of domain names?
Under the current .au Domain Administration Rules: Licensing (Domain Name Rules), the registration of an Australian domain (.com.au, .net.au, .org.au, .id.au, .edu.au) depends on whether the entity is an Australian registered entity or a foreign entity.
For an Australian registered entity (such as an Australian registered company or the holder of an Australian Business Number), the domain name must be either:
  • A match to an Australian trade mark, company name or business name (that is held by them or an Australian-based related body corporate).
  • A synonym to any service, good, event, activity that is being provided.
For a foreign entity, the domain name must:
  • Be an exact match to the words of any Australian trade mark registration or application.
  • Include all words in the order they appear on the trade mark (this includes any taglines).
  • For domains registered under the .au domain (for example, test.au), the individual or entity must satisfy the "Australian presence" requirement. The easiest way to do this is either by being an Australian citizen or permanent resident for individuals, and by securing an Australian trade mark registration for businesses. However, this registration must be an "exact match" to the domain name intended to be held.
The .au Domain Administration Ltd (auDA) is the authority responsible for developing, administering and enforcing policies dealing with the registration of .au domain names, including the Domain Name Rules.
Under the current Domain Name Rules:
  • Domain name licences are allocated on a ''first come, first served'' basis. However, priority status was temporarily given to a business which held any other domain name besides the .au name between March 2022 and September 2022 to register its exact match in .au form.
  • It is not possible to pre-register or reserve a domain name and registering a domain name for the sole purpose of resale or transfer to another entity is prohibited.
  • Holders of an .au domain are prohibited from renting, leasing or sub-licensing their domain names. This prohibition extends to any sub-domains.
  • The domain name licence period means a period of between one to five years. There are restrictions on the composition of domain names and a reserved list of names that cannot be licensed.
27. Can use of a domain name confer rights in a word or phrase contained in it?
The registration of a domain name does not confer proprietary rights in the domain name. Registration gives the licence holder the right to use that domain name for the licence period, subject to the applicable terms and conditions.
Registering a domain name also does not give any ownership rights (including trade mark rights) over the name or words used in the domain name.
A domain name may be registrable as a trade mark in Australia, however, such an application will often require additional verification requirements.
28. What restrictions apply to the selection of a business name, and what is the procedure for obtaining one?
In Australia, business names, company names and trade marks are used for different purposes and require different types of registration.
When registering a company, the entity is required to select a name. Provided the name is not identical to an existing company name and does not contain any restricted words (where the approval of a specified minister or government agency has not already been obtained), the name can be registered with the ASIC. It is also possible to reserve a company name prior to registering the company.
A trader (whether an individual, company or other business) should register a business name in Australia if it wishes to trade under a name that is not its own name. For example, a sole trader with the name Amy Sutton can trade using the name, "Amy Sutton", but must register a business name if she wishes to trade as, "Amy Sutton Consulting." Similarly, a company with the name Sutton & Co Consulting Pty Ltd can trade as, "Sutton & Co Consulting" but must register a business name if it wishes to trade using an abbreviation of the company name, "Sutton & Co".

Jurisdiction and Governing Law

29. What rules do the courts apply to determine the jurisdiction and governing law for internet transactions (or disputes)?

Jurisdiction

When determining the jurisdiction for internet transactions or disputes, the courts can have regard to a range of factors including, without limitation:
  • Whether the terms of any agreement giving effect to the transaction or giving rise to the dispute specify the governing laws and jurisdiction.
  • The location of the parties.
  • The jurisdiction in which the contract was formed or where the transaction, publication or alleged breach occurred.
  • Where the internet transaction was entered into under a standard form consumer contract, whether any term specifying the jurisdiction is "unfair", meaning that it:
    • would cause a significant imbalance in the parties’ rights and obligations arising under the contract;
    • is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term; and
    • would cause detriment (whether financial or otherwise) to a party if it were to be relied upon.
An online business can nominate the jurisdiction for an internet transaction or dispute. However, Australian case law suggests that this will not always be enforceable as the courts will have regard to the location of the parties and where the publication of information pertaining to the dispute occurred.

Governing Law

In addition, under the ACL, a term of a consumer contract is prohibited if the term is unfair, and the contract is a standard form contract. An online agreement, including a click wrap agreement, will be considered a standard form consumer contract if it is for supply of goods or services to an individual for personal, domestic or household use or consumption, and the contract is not negotiated between the parties (beyond changes of a minor or insubstantial effect).
If the governing laws and jurisdiction specified in such a contract would prevent or hinder a consumer from enforcing their rights by requiring that the consumer commence proceedings in a foreign jurisdiction, such terms may be deemed unfair.
30. Are there any alternative dispute resolution/online dispute resolution (ADR/ODR) options available to online traders and their customers?

ADR/ODR Options

Except in relation to domain name registration disputes (which, where the dispute relates to .au registrant eligibility are handled by the Australian Domain Name Administrator), Australia does not have in place a regime or ADR body that specifically deals with online traders and their customers.
The ADR options and remedies that are available to online traders and their customers in Australia are the same as those available for offline transactions and disputes. A specialist dispute tribunal, or a small claims tribunal, is available in most states and territories to resolve a wide range of everyday disputes. The following tribunals can be used by consumers to resolve disputes about the supply of goods and services ordered online:
  • The ACT Civil and Administrative Tribunal.
  • The New South Wales Civil and Administrative Tribunal.
  • Northern Territory Magistrates Court.
  • Queensland Civil and Administrative Tribunal.
  • South Australia Magistrates Court.
  • Magistrates Court of Tasmania.
  • Victorian Civil and Administrative Tribunal.
  • Magistrates Court of Western Australia.

Remedies

When submitting an application to a tribunal, the applicant must nominate the type of orders sought from the tribunal. These orders can include payment of a monetary amount, the delivery of goods or other orders which may be specified by the applicant.

Advertising/Marketing

31. What rules apply to advertising goods/services online or through social media and mobile apps?
In July 2020, the Australian Influencer Marketing Council (AIMCO) released the industry’s first Influencer Marketing Code of Practice. The code sets out the best practices on a range of matters, including:
  • Influencer selection and qualification (described as vetting) and disclosure requirements when no vetting of the influencer has been performed.
  • Requirements for advertising disclosure, prescribing clear and unambiguous declarations regarding contracted engagements (including any engagement that involves a financial payment, value-in-kind, gifts and/or free products), including for use on social media platforms.
  • Contractual considerations to guide the engagement between the influencer and a company.
  • Requirements for presenting metrics and reporting to ensure transparency.
  • AIMCO released an updated version of the code in 2021. The changes are designed to update its best practice recommendations and to increase awareness that disclosure pertains to all types of engagements (including paid or contracted, value-in-kind, gifts, and affiliate).
Generally, the rules applicable to advertising goods, services online and via social media, and conducting trade promotion lotteries online, are the same as those that apply offline. All advertising and promotions must comply with the ACL, which states that businesses (including online businesses) must not:
  • Engage in unconscionable conduct in relation to consumers.
  • Engage in conduct that is misleading, deceptive, or likely to mislead or deceive.
  • Make a false or misleading representation about the existence, exclusion or effect of any condition, warranty or guarantee of goods.
  • Incorrectly display or advertise the price, including by failing to give a single price where the minimum amount payable for the relevant goods or services (inclusive of all quantifiable taxes, fees and other amounts) is known to the trader.
  • Make false representations as to a range of matters including, without limitation, standards, quality, price, performance characteristics, sponsorship approval or affiliation or endorsements.
  • Make misleading or false claims about the country of origin of any goods.
The above list is not exhaustive and additional restrictions and prohibitions may apply.
In January 2023, the ACCC announced that it had launched a social media "sweep" to discover misleading testimonials and endorsements by social media influencers (across a range of social media platforms), following tip-offs from consumers. The regulator plans to publish its findings following its analysis, and it is possible that the sweep will lead to enforcement action from the regulator.
If conducting a trade promotion lottery, whether on a business website or via social media, the business is responsible for obtaining any necessary permits and for otherwise ensuring that the promotion complies with the laws of the jurisdictions in which the promotion is being conducted.
When advertising online or via social media, it is of particular importance to ensure that any disclaimers, limitations or special terms and conditions are clearly communicated to consumers. Limitations on the size of an advertisement (such as a banner ad) or the number of available characters (such as in a tweet) will not remove or reduce the obligations that exist at law and may increase risk to the online trader.
32. Are any types of services or products specifically regulated when advertised or sold online (for example, financial services or medications)?
Regulations and guidelines apply to the advertising and sale of certain goods and services generally including, without limitation:
  • Financial products and services.
  • Certain health services.
  • Prescription medication.
  • Tobacco and alcohol.
Certain licensing and regulatory authorities also impose conditions on the advertising of certain goods and services, whether advertised online or offline. For example, in relation to the advertising of therapeutic goods (medicines and medical devices), advertisements must comply with the Therapeutic Goods Act 1989 (Cth), the Therapeutic Goods Regulations 1990 (Cth) and the Therapeutic Goods Advertising Code. These legislative instruments ensure, among other things, that prescription medicines are only advertised to health professionals. Only non-prescription medicines (such as over the counter and non-prescription complementary medicines) can be advertised to consumers.
Licensees, or online businesses that operate within a regulated industry, must check with the relevant licensing or regulatory authority prior to engaging in any advertising or marketing, or otherwise seeking to sell a regulated product.
33. Are there any rules or limitations relating to text messages or spam e-mails?
Unsolicited commercial electronic messages (such as text messages and e-mails) are prohibited. Commercial electronic messages must (Spam Act 2003 (Cth)):
  • Only be sent with the consent of the recipient (whether express or inferred).
  • Contain a functional unsubscribe facility that is presented in a clear and conspicuous way and remains functional for at least 30 days after the original message was sent.
  • Clearly and accurately identify the individual or organisation that authorised the sending of the message and provide accurate information about how the recipient can contact the sender.
There is also an increased focus on the regulation of scam SMS messages. In 2022, the ACMA registered the Reducing Scam Calls and Scam SMS Industry Code (Scams Code), which requires telecommunications providers to identify, trace and block SMS scams. It also requires telcos to publish information about scam messages for consumers, share information with other telcos and to report scams to the regulator.
The Federal Government also recently requested the ACMA to investigate the creation of a SMS sender ID register, which can act as a blocking list to prevent scammers from impersonating brands.
34. Does your jurisdiction impose any language requirements on websites that target your jurisdiction or whose target market includes your jurisdiction?
There are no specific language requirements in Australia for a website that targets Australian residents or whose target market includes Australia.

Tax

35. Are sales concluded online subject to tax?
A broad-based consumption tax called the Goods and Services Tax (GST) is imposed on certain goods and services supplied in Australia.
Sales of goods and services concluded online often constitute a taxable supply and will be subject to taxation under the GST legislation, unless they are GST-free or input-taxed.
An online business makes a taxable supply if all of the following applies:
  • The sale is made for consideration, including payment of some kind.
  • The sale is made in the course of operating an enterprise that its carries on.
  • The sale is connected with Australia.
  • The business is registered, or required to be registered, for GST.
GST amounts collected by an online business must be remitted by the business to the Australian Taxation Office, subject to any input tax credit entitlements of the business.
36. Where and when must online companies register for value added tax (VAT) (or equivalent) and other taxes? Which country's VAT (or equivalent) rate applies?
Any business that holds an Australian Business Number (ABN) can register for GST.
It is mandatory for an online business to register for GST if both of the following apply:
  • It carries on an ''enterprise'' in Australia, as defined under A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  • Its GST turnover meets the registration turnover threshold (currently AUD75,000 or more for most businesses, and AUD150,000 or more for non-profit organisations).
A person may not need to register for GST if the only sales it makes are made through an online marketplace or electronic distribution platform.
In 2016, changes were introduced in respect of GST and cross-border transactions. The intended effect of the changes is to reduce compliance obligations of non-resident businesses. In particular, the test for carrying on a business in Australia has changed such that, in most instances, a non-resident business will only be required to register for GST if it is based in Australia for more than 183 days in a 12-month period and it has a GST turnover of AUD75,000 or more. The changes also limit the cases where a non-resident entity must pay GST on supplies of things done in Australia and extended the GST-free (zero rate) rules for certain supplies made to non-residents.
In 2017, changes were introduced (with effect from 1 July 2018) which extended GST to include low value imported goods.
The GST turnover of a business is determined by calculating its gross business income excluding GST for either the 12 months leading up to the current month (current GST turnover) or the 12 months starting with the current month (projected GST turnover).
The online business must register for GST within 21 days of reaching the turnover threshold and must hold an ABN in order to register. Applications for an ABN and for GST registration are made to the Australian Taxation Office.
In 2022, the Federal Government passed legislation to introduce a "Sharing Economy Reporting Regime", which requires electronic platform operators to report certain transactions to the Australian Taxation Office. The regime is designed to ensure that sellers in the "sharing economy" comply with their tax obligations and do not have an unfair advantage. The regime will commence for transactions made from 1 July 2023 for the supply of taxi services and short-term accommodation and from 1 July 2024 for other reportable transactions.

Protecting an Online Business and Users

Liability for Content Online

37. What restrictions are there on what content can be published on a website (for example, laws regarding copyright infringement, defamatory content or harmful content)?
Various laws govern liability for website contents, including (but not limited to) the:
  • Copyright Act, in respect of any third-party content that is reproduced or other material that may constitute an infringement of copyright.
  • ACL, for example, in respect of any misleading or deceptive conduct, or the failure to provide a total price.
  • Online Safety Act and Online E-Safety Commissioner can direct online service and platforms to remove illegal content or ensure restricted content can only accessed by people who are 18 or older. Illegal and restricted content is determined based on factors in the Online Safety Act.
There are also a range of criminal offences under the Criminal Code Act 1995 that can apply to providers of online services, such as for failing to refer details of abhorrent violent material to the Australian Federal Police, or for failing to remove or cease hosting abhorrent violent material.
Laws and regulations that apply in an offline environment apply equally to a website and associated content.
38. Who is liable for website content that breaches these restrictions (including, for example, illegal material or user-generated material that infringes copyright or other laws, such as the law of defamation)?
Various laws govern liability for website contents, including the:
  • Copyright Act: in respect of any third-party content that is reproduced or other material that may constitute an infringement of copyright. There are copyright risks to online platforms where the website does not have a licence or consent to use the copyrighted content. Court decisions have found that even if the content is posted by a third-party user, the online platform may still be liable for copyright infringement.
  • ACL: for example, in respect of any misleading or deceptive conduct, or the failure to provide a total price. In consumer transactions, businesses can be liable based on the ACL for representations on their website. For overseas websites of foreign companies with Australian consumers, various factors such as market power and the nature of relationships with consumers can impact whether the ACL applies to Australian consumers.
  • Online Safety Act and Online E-Safety Commissioner: this can order online service and platforms to remove illegal content or ensure restricted content can only accessed by people who are 18 or older. Both the individual and internet, electronic, app and social media service providers can be liable for the publication of restricted and illegal content.
    However, by service providers complying with the required Basic Online Safety Expectations (BOSE) and any removal or blocking notices, service providers will not be held liable further for the content.
Laws and regulations that apply in an offline environment apply equally to a website and associated content.
39. What legal information must a website operator provide?
Under the Corporations Act, the name and the Australian Company Number (ACN) of a website operator must be included in all public documents (such as emails, websites and any legal documents published on a website, include any terms of use and privacy policy) and eligible negotiable instruments. This requirement applies regardless of whether the website operator provides a consumer-facing or business-facing website.
The ACN is a unique nine-digit identifier that is issued by the ASIC when a company is incorporated. The ACN does not change throughout the company's life and remains the same even if the company name changes.
A company can use the ABN (see Question 36) with the company name in place of the ACN, provided that the following applies:
  • The ABN includes the company's nine digit ACN.
  • The quotation of the ABN is effected in the same manner that the quotation of the ACN normally occurs.
There are no express requirements regarding the placement of such identifiers.
Where a company or business is subject to the Privacy Act , it must also provide a privacy policy (which must comply with the requirements of the Privacy Act).
40. Who is liable for the content a website displays (including mistakes)?
Generally, the operator of a website is liable for the content displayed on that website, even where the content has been provided by a third party, such as through a blog or other facility. In the light of this and as a measure to limit its liability, it is prudent for a website operator to:
  • Display clear terms of use and appropriate disclaimers.
  • Actively monitor any content that is submitted by third parties.
  • Where possible, provide a function for users to report any content that may be obscene, defamatory, unlawful or otherwise inappropriate.
  • Promptly remove any content and/or suspend any user that is in breach of the terms of use.
In addition, in a judgement of the Court of Appeal of the Supreme Court of New South Wales in June 2020, it was upheld that media companies were publishers of comments posted to their public Facebook pages by third party users. Since then, the High Court has dismissed appeals from the judgement of the Court of Appeal. Accordingly, media companies can be liable for allegedly defamatory comments made by third parties on such public pages.
41. Can an internet service provider (ISP) shut down (or be compelled to shut down) a website, remove content, or disable linking due to the website's content, without permission?
An ISP is not under any obligation to shut down a website, remove content, or disable linking due to the website's content without permission. However, these obligations can be provided for in the ISP's terms of service.
In early 2015, the Copyright Amendment (Online Infringement) Bill 2015 (Cth) was introduced to amend the Copyright Act 1968 (Cth). It enables a copyright owner to apply to the Federal Court for an injunction requiring a carriage service provider to take reasonable steps to block access to overseas websites that have the primary purpose of providing users with access to material which infringes copyright.
In a 2017 decision of the Federal Court of Australia, it was observed that:
  • In each case it is a matter for the discretion of the court whether or not to grant an injunction, with the exercise of such discretion guided by, but not limited to, matters such as the flagrancy of the infringement and whether the website operator demonstrates a disregard for copyright generally. However, the Court may only grant injunctive relief if it is satisfied that, among other things, the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).
  • The factors that the court may take into account set an intentionally high threshold test for satisfaction by the court. The purpose of the takedown regime is to allow a specific and targeted remedy to prevent those online locations which flagrantly disregard the rights of copyright owners from facilitating access to infringing copyright content.
  • The term "online location" is intentionally broad and includes, but is not limited to, a website and would also accommodate future technologies.
    (Universal Music Australia Pty Ltd v TPG Internet Pty Ltd [2017] FCA 435)
  • In January 2022, the Online Safety Act (OSA) came into effect. The legislation heighted the accountability of all online service providers including ISPs. Under the OSA, the eSafety Commission has the power to require ISPs to block access to material showing abhorrent violent conduct such as terrorist acts. Where ISPs are found to have breached the OSA, the Commissioner will provide a removal notice which requires the recipient to take all reasonable steps to remove the material.
  • Other actions that eSafety Commissioner can take under the OSA include:
  • Issuing a formal warning.
  • Issuing an infringement notice.
  • Accepting an enforceable undertaking.
  • Seeking a court-ordered injunction.
  • Seeking court-ordered civil penalties.
Australian government agencies also have the power to compel ISPs to block certain websites where the Commonwealth government agency or the State or Territory government agency considers it reasonably necessary for the purpose of (section 313, Telecommunications Act 1997 (Cth)):
  • Enforcing the criminal law and laws imposing pecuniary penalties.
  • Assisting the enforcement of the criminal laws in force in a foreign country.
  • Protecting the public revenue.
  • Safeguarding national security.

Liability for Products/Services Supplied Online

42. Are there any specific liability rules applying to products or services supplied online?
While detailed legislation relating to products or services supplied online does not exist in Australia, all products that are supplied in Australia (whether online or not) must be safe and must meet the consumer guarantees under the ACL. The consumer guarantees are automatic guarantees for the benefit of a consumer whenever they purchases products or services.
Businesses must guarantee the products and services they sell, hire or lease where the value of those products or services is:
  • Under AUD100,000 (or AUD40,000 for goods and services supplied before 1 July 2021).
  • Over AUD100,000 (or AUD40,000 for goods and services supplied before 1 July 2021), if they are normally acquired for personal, domestic or household use.
If a business fails to deliver any of the guarantees, a consumer has the right to either:
  • Ask for a free repair, replacement or refund.
  • Cancel a service.
  • Seek compensation for damages and loss.
Certain products may also be subject to specific regulations that prescribe product safety requirements, labelling requires or impose restrictions on the sale of certain types of goods.

Insurance

43. What types of insurance does an online business usually need?
Insurance requirements are determined by the type of business operated by the online business, which must obtain advice as to the kind and level of protection it requires based on its own business type and needs. Generally, insurance options available to businesses consist of:
  • Liability insurance, which may include options such as professional indemnity, product liability and public liability.
  • Asset and revenue insurances, which may include options such as business interruption, general property, portable and valuable items, electronic equipment, goods in transit theft and burglary and personal accident.
Certain forms of insurance are also mandatory. For example, if the online business employs any person in Australia, workers compensation obligations must be satisfied in accordance with the regulations in place in the State or Territory in which each person is employed.

Reform

44. Are there any proposals to reform digital business law in your jurisdiction?
In July 2019, the Australian Government released the Australian Competition & Consumer Commission's (ACCC) Digital Platforms Inquiry Final Report (Final Report). The Inquiry was conducted to consider the impact of online search engines, social media and digital content aggregators (digital platforms) on competition in the media and advertising services markets. The Final Report contains 23 recommendations relating to matters such as:
  • Formation of a special digital platforms branch within the ACCC to monitor potential anti-competitive behaviour or conduct, conduct inquiries and investigations and take enforcement action where necessary.
  • A proposed separate inquiry into competition for the supply of advertising technology services and online advertising services by advertising and media agencies.
  • A proposal that designated digital platforms develop and implement a code of conduct governing their relationship with news media businesses, to be approved and enforced by the Australian Communications & Media Authority (ACMA).
  • The proposed Introduction of a mandatory take-down code for copyright infringements, to be enforced by the ACMA under the Telecommunications Act governing take-down processes for digital platforms operating in Australia.
  • Changes proposed to Australian privacy law.
As part of the Federal Government's response to the findings of the Inquiry, in February 2020 the ACCC was directed to undertake two further inquiries, as follows:
  • The Digital Advertising Services Inquiry to review competition for the supply of digital advertising technology services and digital agency services. The review will be conducted over an 18-month period.
  • The Digital Platforms Services Inquiry to review digital platform services, digital advertising services by digital platforms and data practices by digital platforms and data brokers. The review will be conducted over a five-year period.
  • In November 2022, the ACCC released the fifth interim report in its Digital Platform Services Inquiry (Digital Services Report). The Digital Services Report recommends a range of measures to address the apparent harms from digital platforms to consumers, small businesses, and competition generally. The ACCC raised concerns with a range of conduct by digital platforms, such as self-preferencing, tying, and withholding access to important hardware software and data inputs. In relation to competition law, the regulator proposes a new power to make mandatory, service-specific codes of conduct for "designated" digital platforms. Each code would be for a unique type of digital platform service and would contain targeted obligations to address areas of concern such as anti-competitive self-preferencing or tying.
  • The Australian Government has now launched a consultation to consider the need for a new competition and consumer protection regulatory framework for digital platforms, as recommended by the ACCC.
In February 2023, the Federal Attorney-General’s Department released the Privacy Act Review Report (Privacy Act Report). The Privacy Act Report contains 116 specific proposed changes to be made to the Privacy Act. If implemented, these proposals will drastically change the privacy landscape in Australia and have implications for all organisations that collect, handle, use and disclose personal information.

Contributor Profiles

Matthew Bovaird, Special Counsel

Bird & Bird

T +61 2 9226 9888
E [email protected]
W www.twobirds.com
Professional and academic qualifications. Law, The University of Auckland BA/LLB, Law Society of New South Wales.
Areas of practice. Tech transactions; commercial; technology; media and communications; competition.

Hamish Fraser, Partner

Bird & Bird

Professional and academic qualifications. Law, The University of Queensland; Law Society of New South Wales; Law Society of Queensland; Law Society of Victoria.
Areas of practice. Tech transactions; commercial; technology; media and communications.

Thomas Jones, Partner

Bird & Bird

Professional and academic qualifications. Law, University of Melbourne, LLB; Law Society of New South Wales; High Court of Australia, 2001.
Areas of practice. Tech transactions; commercial; technology; media and communications.

Belyndy Rowe, Senior Associate

Bird & Bird

Professional and academic qualifications. University of Melbourne, Juris Doctor; Supreme Court of ACT: Supreme Court of Victoria; Supreme Court of NSW.
Areas of practice. Data protection, technology, media, and commercial.