Despite there being no cases involving the application of consumer guarantees to data protection and privacy, the role of the ACCC is otherwise growing in relation to its regulation, as seen by enforcement action brought by the ACCC against various large digital platforms.
In 2020, in proceedings initiated by the ACCC, the Federal Court found that HealthEngine engaged in misleading and deceptive conduct in respect of the sharing of patient information, ordering the payment of AU$2.9mil in penalties. The Court made this finding on the basis that HealthEngine had failed to adequately inform consumers that it provided their personal information to third-party insurance brokers.
The ACCC has targeted other large digital platforms, having brought separate proceedings against Google and Facebook in respect of their data practices, relying on, for example, the following sections of the ACL:
More recently, the ACCC has commenced proceedings against Meta Platforms, Inc and Meta Platforms Ireland Limited (Meta) in relation to the publication of scam ads on Facebook. The scam ads allegedly encouraged investment in cryptocurrency or other ‘money-making’ schemes and displayed well-known Australian figures without their approval or endorsement.
The ACCC claims that the alleged conduct is in breach of ACL or the Australian Securities and Investments Commission Act 2001 (Cth).
The ACCC alleges false, misleading or deceptive conduct, and it claims that Meta ‘aided or abetted or was knowingly concerned in false or misleading conduct and representations by the advertisers’. The ACCC claims that Meta was familiar with the ads and did not do enough to tackle the issue.
Businesses should be aware of the increasing role consumer law is playing in regulating data and privacy. Businesses that have, for example, misled consumers as to the collection of data, can face significant penalties under the ACL. In addition to ensuring compliance with privacy regimes, businesses should exercise care in relation to privacy notices and information given to consumers to ensure it doesn’t breach the ACL.
The ACCC has released its strategic compliance and enforcement priorities for 2023-2024, which include competition and consumer issues connected with digital platforms, as well as consumer and fair trading issues around ‘manipulative or deceptive advertising and marketing practices in the digital economy’. The financial services sector, and in particular payment services, is also highlighted as a priority.
*Information is accurate up to 27 November 2023
