The norm of fairness must be recognised
Our existing consumer protection framework has failed to prevent unfairness from becoming embedded in business practices.
From unclear marketing, subscriptions that make cancellation difficult, to business models that exploit behavioural biases, unfair practices distort a consumer’s free choice. Consumer harm continues in the face of existing laws, and the opportunity for manipulation and exploitation of consumers is becoming more significant in the context of the digital economy.
In our response to the Final Report of the Australian Competition & Consumer Commission (ACCC) Digital Platforms Inquiry (DPI), Consumer Action emphasises the need to specifically prohibit unfair trading practices. We consider that, if a new prohibition is to have a normative effect on business practice, it should be drawn in a wide fashion, have an economy-wide effect, and not be constrained to applying to certain types of practice or business sectors.
Prohibiting certain unfair trading practices can help ensure the Australian Consumer Law (ACL) reflects the community expectation that consumers are treated fairly.
Consumer Action’s submission makes the following additional recommendations in response to the DPI Final Report:
- Reform privacy law (including any codes regulating digital platforms) in a way that promotes greater use of consumer defaults, recognising the limitation of consent mechanisms.
- The new specialist digital platforms branch of the ACCC should prioritise investigations into business practices and risks for consumers associated with profiling, target marketing and price discrimination. The unit should publish its findings regularly to aid consumer understanding about potential harms.
- Penalties for use of unfair contract terms and breaches of privacy law should align with the penalties for breach of the Australian Consumer Law.
- There should be robust individual rights including actions for damages associated with breaches of privacy.
- Standards for internal dispute resolution for digital platforms should align with those that apply in financial services.
- Data about complaints should be published to incentive digital platforms to improve their dispute resolution processes and provide insight for consumers.
- In establishing an ombudsman scheme for digital platforms, adopt the Treasury Benchmarks for Industry-based Ombudsman Schemes and the Consumers’ Federation of Australia Good Practice Principles.
You can read the full submission here [PDF].