2018 is likely to be an interesting year for regulation of the Australian communications sector with, amongst a myriad of other initiatives, the Government scheduled to finalise its re-write of Australia’s radiocommunications legislation, the finalisation of the communications sector market study undertaken by the Australian Competition and Consumer Commission (ACCC) and a crackdown by the Australian Communications and Media Authority (ACMA) on telecommunications companies to ensure consumers have an improved experience in migrating to the National Broadband Network (NBN).
One initiative that has received little attention to date is the Commonwealth Government’s proposal, announced on 26 November 2017, to legislate a national “consumer data right” allowing consumers open access to, amongst other data, their communications (that is, phone and internet) transaction data.
Why a consumer data right?
The Government’s announcement of a consumer data right was a direct response to the Productivity Commission’s (PC) report, released in May 2017, of its inquiry into ways to improve the availability and use of public and private sector data. The PC’s report recommended, amongst other initiatives, the creation of a new right for consumers and small and medium sized businesses (SMEs), the so called “comprehensive right”, applicable to digital data holdings only. This would provide greater rights to consumers and SMEs to trade and use their data, including for example the right to require one data holder to transfer data to another.
The ACCC is currently undertaking a comprehensive communications sector market study. In its draft report, which was released on 8 December 2017, the ACCC also made recommendations regarding data access in the context of the communications sector.
The ACCC supported the PC’s recommendation, commenting that providing consumers more access to data about themselves would, ultimately, lead to service providers making more tailored offerings to consumers and being more innovative. The ACCC also noted that, in its view, implementation of the PC’s recommendation should assist consumers to compare competing offers, make more informed choices and potentially make it easier to switch providers.
It is also useful to look at the comments in the ACCC’s draft report on comparator websites. The ACCC has stated that it will review the scope, transparency and ease of use of comparator websites for communications services and consider the need for further intervention in addition to its existing guidance. The ACCC indicated that comparator websites may be limited in their effectiveness by the way information is represented by different service providers and inconsistencies in product descriptions. This suggests that the ACCC would also support the sector being required to publish more standardised product information. The Government’s media release indicated that a requirement for such standardised information might be an element of the new legislation.
Government’s announcement: unanswered questions
The Government’s announcement provided little information on the proposed legislative regime, meaning a number of key questions have not been addressed.
What information would be covered and how would it be exchanged?
The Government’s November 2017 announcement did not address the very complex questions of what data would be required to be shared and how that sharing would be achieved. These are key issues, particularly given the necessity of protecting the confidentiality of any consumer data that is shared. In 2017, the Government commissioned a report into how consumer data sharing might be achieved in the banking sector. The report was provided to the Government at the end of 2017 though it has not yet been publicly released, so no guidance on how the Government might address these questions is available at the current time. In any event, the media release does not specify whether communications service providers will be subject to the same regime as that which would apply to the banking sector.
How will this regime assist consumers?
The key reason given for allowing consumers to access their data is to assist consumers in making decisions regarding appropriate services and service providers. The Government’s media release stated that, as a result of the new legislation, “Australians will be able to compare offers, get access to cheaper products and plans to help them ‘make the switch’ and get greater value for money.”[i] The ACCC has also emphasised this benefit.
But more will be needed to achieve this outcome than simply providing access to consumers to their communications services usage and fees data. It might, for example, also be necessary to require service providers to provide standardised product descriptions, and potentially even standardised products, to allow consumers to more easily compare different services.
Although the Telecommunications Consumer Protections Code, which is an industry code registered with ACMA under the Telecommunications Act 1997 (Cth) (Telco Act), requires telecommunications companies that provide services to consumers and small business to prepare critical information summaries of their products, that obligation falls short of requiring the level of uniformity of product description that seems to be envisaged by the Government. Therefore, potentially, the new legislation may impose obligations in this area.
The issues outlined above are some of the more difficult issues that will need to be addressed. However, there are a number of other issues, both big and small, including:
- The PC report suggested that each relevant sector should manage its own data sharing regime. Would this be appropriate in the communications sector?
- How will the new legislation interact with the Privacy Act 1988 (Cth) and the privacy obligations contained in the Telco Act?
- Who will meet the costs of developing and complying with the new system?
- Given the wide range of both small and large telecommunications services providers, will the new regime only apply to providers of at least a specified minimum size?
- What liability will attach to a service provider if it shares incorrect data?
Communications Alliance, a peak communications industry body, issued a media release responding to the Government’s announcement[ii]. This included the following statement:
Industry supports the top-line objective of the PC recommendations, but we need clarity from Government if we are to be able to help avoid the legislation becoming a costly exercise in unintended consequences.
Any proposed legislation will, if it is to provide the benefits to consumers that the Government envisages, need to address the legitimate concerns of telecommunications sector stakeholders to ensure unreasonable costs are not imposed on service providers (which will ultimately be passed on to consumers) and to ensure the regulation does not create confusion. Given the limited information released by the Government to date, the proposed legislation will receive significant scrutiny when it is released for public consultation.