What you need to know:

• The ACCC and AANA think a standardised information box will work as Australia grapples with how to gain informed, explicit consent over sharing of consumer data, identifiers and browsing habits. Google, Facebook (or Meta) and the major publishers disagree.
• Nine and Seven, through Free TV, don’t believe wholesale change to key definitions like ‘personal information’ and an updated consent framework are necessary.
• This is important because Australia is walking towards GDPR-like privacy laws, and the effects of GDPR are still unclear on consent. A major ruling earlier this month found Europe’s cookie pop up framework wasn’t transparent enough.

Big tech platforms and major publishers are at odds with advertisers and the Australian Competition and Consumer Commission (ACCC) over how to ask Australians to use their data.

Put simply, the ACCC wants a standardised layout, wording and icons for any privacy and consent pop up that explains what data the industry is collecting on consumers for advertising – and the Australian Association of National Advertisers agrees.

But Facebook and Instagram’s parent company Meta, Google, Free TV and Nine all disagree, saying it would stifle innovation and increase consent fatigue. There are a lot of other areas they disagree on, too.

Submissions to the Australian Government’s review of the Privacy Act, 199 of which have been published online, reveal substantial differences between how the industry wants to approach a change in privacy laws. How to be transparent and gather consent is just one element of the proposed changes, which is significant because Australian laws are set to become more in line with Europe’s General Data Protection Regulation (GDPR). A European regulator recently found the region’s industry-agreed pop up breached GDPR because it did not have enough information.

Stronger notice is especially important on social media platforms – like Facebook, TikTok and Instagram – the ACCC said, because there are “significant information asymmetries” between the companies and consumers.

The AANA represents Australia’s biggest advertisers who control the industry self-regulatory advertising codes and spend billions of dollars with Google, Facebook, and the major publishers. The organisation said it supported a “proposal for standardised consents to maximise consumer understanding and familiarity with the process”.

“Not all advertisers are multi-national companies with privacy experts and, as such, will require guidance and support to ensure compliance with any new rules,” it noted.

Platforms: 'We need flexibility'

Google said while it acknowledged the “desire for standardisation”, organisations had to be flexible and share information relevant to their products. “For example, the delivery of information to inform a consent choice in the context of a search engine is very different to how you might request consent within a mapping app,” it wrote.

It's a little ironic given global tech-media and social platforms force extreme and templated standardisation on their global markets, trading partners and customer service.

Facebook, meanwhile, said standardised notices would only make it more confusing for consumers. “The perceived benefits that may be afforded by standardised notices will come at a price,” it wrote. “Put simply, every business is unique. Businesses that rely upon consumer data – including banks, telcos, retailers, insurers, and social media service providers – come in all different shapes and sizes and operate according to different business models. It would not be helpful to consumers to force all of these different businesses to attempt to describe their different data management practices using the same limited vocabulary of words and symbols.”

Publishers: Don't kill our new business models

Interestingly, none of the major publishers – Nine, Seven or News Corp – had submissions available on the Attorney General’s website yesterday. A spokesman for Nine said it had filed a submission and was asking the Department why it hadn’t been uploaded. The AGD did not reply to questions before deadline. Nine shared its submission with Mi3 directly. It’s understood Seven and News Corp did not put in submissions, instead contributing to those from industry groups like Free TV and IAB Australia.

Free TV and Nine both stressed that the current Privacy Act was, broadly, working well. They discussed at length the importance of the Privacy Act’s exemption for journalism. “There are no valid public policy reasons for limiting or removing the exemption,” Free TV wrote. Nine agreed, noting that a strong and independent media can use news – and also content like reality TV shows, documentaries and entertainment – to “[protect] our institutions against corruption and misfeasance”.

Consent requirements should remain essentially as they are, Nine added. “The current framework around notice, consent and the definition of ‘personal information’ should be retained,” it wrote.

The publishers were united that:

• There should be no privacy tort [infringement] or ability for a member of the public to take legal action over a breach of privacy.
• There should be no change to the definition of ‘personal information’.
• Proposed consent collection changes would be too onerous.
• The Office of the Australian Information Commissioner should be more well-funded, but that money should not come from industry.