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Australia: ACCC Calls for Submissions to Inform AdTech Inquiry

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The Australian Competition and Consumer Commission (ACCC) has launched its AdTech Inquiry, recently releasing an Issues Paper to obtain views from market participants and interested parties on the key issues affecting the markets for ad tech services and digital agency services.

This Issues Paper is the first step in the ACCC’s Digital Advertising Services Market Inquiry (AdTech Inquiry) and follows on from the ACCC’s Digital Platforms Inquiry Final Report.

The main issues the ACCC is interested in are:

  • how well the relevant markets are operating, including the extent to which there is excessive concentration in the relevant markets and any impact on competition
  • the availability of information and pricing transparency, particularly given supply chains that can be complex or opaque
  • auctions and bidding processes engaged in by intermediaries
  • examples of mergers or acquisitions that have provided suppliers with the ability to profitably raise prices or lower quality without losing customers, or make it more difficult for new companies to enter markets
  • the impact and extent of vertical integration of certain market participants
  • the role and use of data in relevant markets, including supplier policies relating to data collection, management and disclosure
  • the nature and scope of agreements between suppliers and customers, including whether there are any restrictive or preferential agreements and details as to how agreements are negotiated
  • the satisfaction of market participants

The matters raised in the Issues Paper are similar to those considered in the UK by the Competition and Markets Authority in its Advertising Market Study in 2019. From the way in which the questions are drafted, the ACCC is clearly interested in examples of anticompetitive conduct in the industry, as well as obtaining more information about the industry to assist its further enquiries.

Submissions in response to the Issues Paper are due by 21 April 2020. While the ACCC has directed specific questions towards market participants – including advertisers, ad agencies and publishers – before answering these questions in a submission it is worth considering whether comments should be made on:

  • the accuracy and completeness of the ACCC’s descriptions of the relevant markets, supply chains, concepts and market participants
  • the scope of the inquiry, including whether there are areas the ACCC should particularly focus on, and whether there are important areas that have been missed
  • views on the potential concerns the ACCC has indicated that it is considering
  • any other information regarding competition in relation to the supply or acquisition of digital advertising that would be relevant for the ACCC

In providing a response, it is important to be mindful of any confidentiality obligations.

The ACCC has also indicated that it will use its compulsory information gathering powers under the Competition and Consumer Act 2010 (Cth) to gather information to assist with the Inquiry.

We are happy to advise our clients on the best strategy for engaging with the Inquiry, or responding to a compulsory notice. Please contact us if you would like advice on preparing a submission or to discuss this important inquiry further.

The Issues Paper, as well as key fact sheets for advertisers and ad hosts are available for download from the ACCC’s website.

Thank you to Simone Blackadder, Senior Associate, and Holly Ritson, Associate for their assistance in preparing the alert.

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Author

Lynsey Edgar is a partner in the Sydney dispute resolution team, whose practice focuses on competition and consumer law. She is global co-lead of the Firm's Competition Litigation Taskforce. Lynsey is recognised in Legal500 (Competition and Trade, Australia, 2022), where she is described by clients as having "high commercial acumen" and providing "clear and commercial merger control advice". Client feedback to Chambers & Partners states that Lynsey is "outstanding in her ability to advise on complex matters". Lynsey is a member of the Law Council of Australia's Competition and Consumer Committee, and has spoken widely on topics including compliance with competition law and responding to regulatory investigations.

Author

Andrew Stewart heads the Australian Media & Content Group and serves as member of the Global Media Steering Committee of Baker McKenzie. A partner since 2007, Andrew is also a member of the Australian Dispute Resolution, Intellectual Property and Technology, Communications & Commercial practice groups. Andrew also has significant in-house experience in one of Australia’s most successful television networks, giving him an insight into the media environment in Australia. He is a committee member of the Communication and Media Lawyers Association of Australia, and is an advisory board member of the Melbourne University Centre for Media and Communications in the Law. He also serves as secretary of the International Institute of Communication, Australian Chapter.

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