Metrics

Innoculating Law Schools Against Bad Metrics' by Kimberlee G Weatherall and Rebecca Giblin in K Bowrey (ed), Feminist Perspectives on Law, Law Schools and Law Reform: Intellectual Property & Beyond (forthcoming) comments 

Law schools and legal scholars are not immune to the expanding use of quantitative metrics to assess the research of universities and of scholars working within universities. Metrics include grant and research income, the number of articles produced in journals on ranked lists, and citations (by scholars, and perhaps courts). The use of metrics also threatens to expand to measure other kinds of desired activity, with various metrics suggested to measure the impact of research beyond scholarly circles, and even more amorphous qualities such as leadership and mentoring. 

Many working legal scholars are (understandably) unaware of the full range of ways in which metrics are calculated, and how they are used in universities and in research policy. What is more, despite a large and growing research policy literature and perhaps an instinct that metrics are inherently flawed as a means to recognise research 'performance', few researchers are aware of the full scope of known and proven weaknesses and biases in research metrics. 

In this contribution to a forthcoming book, we describe the use of metrics in university and research and higher education policy (with a focus on Australia). We review the literature on the many flaws and biases inherent in metrics used, with a focus on legal scholarship. 

Most importantly, we also want to promote a conversation about what it might look like for academic researchers working in law faculties or on legal issues to assess research contributions that promote the shared values of the legal academy. Our focus is on two areas of research assessment: research impact and the bucket of concepts variously described as mentorship, supervision, and/or leadership. We reframe the questions that researchers and assessors should ask: not, “what impact has this research had”, but “what have you done about your discovery?”; not “what is your evidence of research leadership”, but, “what have you done to enable the research and careers of others?”. We also present concrete suggestions for how working legal scholars and faculties can shift the focus of research assessment towards the values of the legal academy. The chapter incorporates some of our thinking on developing meaningful legal research careers - something that will hopefully be of interest to any working legal scholar.

The authors note

In the discipline of law and legal studies in Australia, we have seen the dangers of inappropriate reliance on metrics up close, most notably via the disastrous 2010 ERA journal list. Expert law academics had universally agreed that journal rankings weren’t suitable for assessing legal research, given the discipline’s size, idiosyncratic journal publishing structures, high degree of specialisation, and the reality that, as a similar exercise in the UK had established, legal research of the highest quality can be found in a wide range of journals. Despite law’s courteous and steadfast resistance, however, when the Australian Research Council (ARC) released its draft journal ranking in mid 2008, law journals were included. The list was almost ludicrously inappropriate, featuring just two non-US journals in the top 198 (despite the fact that few US journals would even consider publishing research on Australian law) and with the ARC apparently unaware that most of them were not subject to peer review. But still, it had to be taken seriously. As Bowrey explains, ‘from this time on there was no longer any real discussion of rejecting rankings but rather only discussion of how to ‘improve’ a bad situation.’ The eventual list of law journals was amended, but it remained highly unsatisfactory. While some inequities were fixed during the revision process, fresh ones were introduced thanks to the fierce lobbying and rent-seeking that took place once it became clear that rankings would be used to assess legal research and law schools. 

While publishing in top ranked journals was supposed to be a reasonable proxy for publishing the best research, it ended up rewarding all kinds of other characteristics instead. The highest ranked Australian law journals were ultimately mostly generalist university reviews, which disproportionately publish men over women and public law over any other specialty (indeed, one of the most prestigious journals, the Federal Law Review, has announced that it will only publish public law (federal or state), abandoning a long-standing position of publishing the best work on areas within the federal jurisdiction). Research that was interdisciplinary, international, or covered one of the (many) snubbed sub disciplines could be incapable of finding a home in a top ranked journal, even if it was important, urgent, and of excellent quality. The reality is that editors of the leading law school journals often feel unqualified to review or publish interdisciplinary work in particular, or work from smaller sub- disciplines they judge ‘not of general interest’. And the use of the flawed list wasn’t limited to the research assessment exercise: as had been predicted, universities rapidly cooppted those rankings to inform all manner of other processes, including promotions, recruitment and internal grant allocations. Part of the list’s distorting effect was to change where researchers submitted their research - and even the topics on which they worked. For example, one empirical study of industrial relations academics found they were changing the focus of their work in order to bring it within the purview of those higher ranked journals by making it less Australia-focused and less critical.

ACCC Digital Ad Services Inquiry

The Interim Report of the ACCC inquiry into Digital Advertising Services comments 

Australians are spending more time than ever viewing content on internet-connected devices. Advertising frequently accompanies and helps fund that content. Despite the impact of COVID-19, Australian digital advertising expenditure (including classified, search and display advertising) reached AU$9.1 billion in the 2019-20 financial year. 

Digital display advertisements are the images or videos that appear before or alongside content viewed online. This Inquiry considers the advertising technology (or ‘ad tech’) services that deliver personalised digital display advertising on websites and apps, and associated advertising agency services. The Inquiry does not consider online search advertising and does not focus on advertising sold by businesses such as Facebook that is not sold through the ad tech supply chain. 

Ad tech services are critical to the digital economy. They enable the near-instantaneous delivery of $3.4 billion in display advertising opportunities in Australia each year. Effective competition in the ad tech industry is important for Australian consumers. If advertisers pay too much for digital advertising, the costs will be passed on to consumers in the form of higher prices for goods and services. If publishers receive too little revenue for their advertising inventory, consumers will face a reduction in the quality and variety of online content. 

This report focuses on concerns identified by online publishers, advertisers, industry groups, academics and ad tech providers with the supply of ad tech services in Australia. The main themes explored in the report are:

• Google’s industry-leading position. While there are a large number of ad tech providers across the supply chain as a whole, Google is by far the largest provider of each of the four key ad tech services considered. The report considers the reasons for, and implications of, Google’s position 

• concerns about opacity in the operation and pricing of ad tech and ad agency services. This has been a key issue for both online publishers and advertisers, and raises multiple questions. First, with so many different ad tech services used to deliver an ad to a consumer, how much advertising spend on digital display is being retained by ad tech providers, and how much is flowing through to publishers? Secondly, are advertisers and publishers getting enough information about how the whole supply chain operates to make informed choices about which suppliers to use? Thirdly, how should transparency and competition in the supply of ad tech services be promoted while ensuring consumer privacy is protected? 

A number of governments and regulatory agencies have previously released reports that include consideration of the ad tech industry. This Inquiry builds on that body of previous work and describes the issues as they relate to Australia. 

The ACCC is seeking stakeholder views on the proposals outlined in this report, which reflect the ACCC’s initial views of measures that may be effective in addressing competition and transparency issues in the supply of ad tech services. There is close alignment between these proposals and those discussed in overseas reports into the industry. The ACCC considers that the success of any proposed interventions in this industry is likely to be enhanced, and the regulatory costs minimised, if policymakers collaborate and coordinate policy solutions across national borders. The ACCC is closely following recent overseas enforcement actions in relation to digital platforms and the supply of ad tech services. On 16 December 2020, the Texas Attorney-General on behalf of nine US states filed a complaint against Google, alleging Google has monopoly power and forecloses competition in US markets for the supply of ad tech services. 

The alleged anti-competitive conduct includes unlawful tying arrangements, exclusionary conduct, market allocation and price fixing arrangements. The complaint alleges Google’s exclusionary conduct has foreclosed competition and harmed consumers, evidenced by the exit of rival firms and limited and declining entry rates. The filed complaint also alleges the existence of an unlawful agreement between Google and Facebook and deceptive trade practices in breach of some states’ consumer protection laws. 

Most of the allegations and concerns raised with the ACCC and discussed in this Interim Report are set out in the complaint filed by the US states. The ACCC will continue to consider these issues during this Inquiry, including whether enforcement proceedings under the Competition and Consumer Act 2010 (Cth) (CCA) are required. 

Users of digital advertising services 

Digital advertising technology services have developed to interact with three groups: individual consumers of digital content, publishers, and advertisers. 

Consumers 

Individual Australians do not use ad tech services. Nonetheless, they are the end consumers of the digital advertising supply chain. Examples of situations where individuals may view display advertising include:

• image or video ads shown while viewing a website in a browser on a desktop or mobile device 

• image or video advertising integrated into the content of a mobile app, and 

• videos shown during the ‘ad breaks’ in the ‘catch-up’ video streaming services of major commercial television networks.

Advertising shown in these contexts is likely to be targeted to the specific consumer, at least to some degree, based on their characteristics, preferences and interests. Individuals aren’t just the end consumer. They also, through their various online and offline activities, generate much of the data that is used to target the advertising. Sophisticated software and processes have been developed to enable large volumes of data to be collected, analysed, and then have its insights made available for use by businesses and organisations in targeting advertising to individuals viewing digital content. The data used to target ads is often de-identified by replacing any personal details with anonymous identifiers, though there are risks that de-identified data may be matched with other datasets in ways that lead to the data being re-identified. 

Publishers 

The term ‘publisher’ is used in this report to refer to anyone with an online property on which display advertising might be supplied and includes owners of websites (such as news websites and video streaming sites or services), mobile apps, and social media platforms that show digital display advertising. Publishers use ad tech services to attempt to maximise the revenue that they can obtain from selling advertising space on their online property (e.g. website, app, video stream, etc.). Publishers use two or three main types of ad tech service: publisher ad servers and supply- side platforms (or SSPs) or ad networks, discussed below. 

Advertisers 

Advertisers include businesses of all sizes and across all industries, non-profit organisations, and government departments and agencies. Advertisers are interested in purchasing advertising opportunities that will be viewed by consumers who are most likely to be interested in their products, services, or message. They use ad tech services to target their ads to consumers who are most likely to be interested in their products, and to determine how much they are willing to pay for an advertising opportunity, assisting them to use their advertising budgets efficiently. 

Advertisers use two main types of ad tech service: advertiser ad servers and demand-side platforms (or DSPs), discussed below. Advertiser ad tech services typically rely on substantial amounts of data to target their ads to consumers in real-time. Advertisers use data that they have collected directly from interactions with customers (e.g. visits to the advertiser’s website, past purchases, participation in loyalty programs or mailing lists, etc.) and data from third-party sources (e.g. online profiles or audience segments made available by DSPs or other market participants). Advertisers may choose to utilise the services of an ad agency to help them plan and purchase digital advertising. 

Competition in the supply of digital advertising technology services 

This report primarily considers the extent of competition in the supply of four services: advertiser ad servers, demand-side platforms, supply-side platforms and publisher ad servers. Beyond these core services, advertisers may also use data management platforms to collect and manage their use of data, as well as verification and attribution services to monitor the performance of ad tech services. While there are a large number of ad tech providers across the supply chain, Google is by far the largest provider of each of the four key services considered. ...The information used to estimate these shares of revenue and impressions is based on the total revenue earned and total impressions traded or served in relation to digital display advertising served to users in Australia in 2019. 

Multiple factors contribute to Google’s market leading position in the supply of ad tech services 

The ACCC’s inquiries indicate that there are a number of factors which contribute to Google’s strong position in the supply of ad tech services, including:

• enabling access to a larger group of advertisers and publishers, as well as better access to greater volume and particular types of ad inventory (which comes from Google’s presence across the supply chain as well as its ownership of key ad inventory such as Google Search and YouTube), 

• ad targeting capability, which is linked to the breadth and depth of the data available to Google as a result of its activities across consumer-facing and advertising markets, 

• ease of use and integration with Google's other services, and 

• the performance, quality and price of its services. Google’s acquisitions of ad tech providers and related services (including YouTube, DoubleClick, AdMob and AdMeld) have contributed to Google’s strong position in the supply of ad tech services and assisted its expansion into related markets. 

Advertiser ad servers 

Advertisers use advertiser ad servers to manage their digital ad campaigns. This primarily involves tracking and managing the performance of an advertiser’s ads by collecting and reporting on the websites or apps where the advertiser’s ads are served and how those ads performed. Advertiser ad servers also host the creative content for the advertiser’s ads and deliver that content to a publisher ad server when the advertiser’s ad is to be displayed. 

The ACCC estimates that Google Campaign Manager held an 80-90% share of impressions for advertiser ad server services in Australia in 2019. Other suppliers with a much smaller presence include Sizmek (owned by Amazon), Adform, Innovid, and Flashtalking. Google’s high share of impressions suggests that the competitive constraints on Google are not substantial. There are number of potential barriers to entry and expansion in the supply of advertiser ad server services including the degree of single-homing, the magnitude of switching costs, and the degree of vertical integration. The ACCC is seeking further information on the extent to which these barriers may prevent competitive entry and expansion by smaller rivals. 

Demand-side platforms (DSPs) Advertisers use DSPs to help with buying ad inventory programmatically according to parameters set by the advertiser. DSPs use automated algorithms to make buying and bidding decisions for advertisers, including deciding which ad impressions to bid on and deciding on the optimal bid in response to each ad impression as it becomes available. DSPs submit their bids into auctions run by SSPs. The ACCC estimates that Google’s two DSPs (Google Ads and Display & Video 360) together held a 60-70% share of revenue for DSP services in Australia in 2019. Other DSPs in Australia with a smaller presence include Amobee, Criteo, Adobe, MediaMath, Amazon, The Trade Desk, Verizon Media, and Xandr. 

Google’s large share of revenue (and impressions) appears to be underpinned by its access to significant ad targeting data, exclusive ad inventory and vertical integration in the ad tech stack. Information suggests that the incentive to single-home with a DSP provider is significant and may be a key barrier to entry and expansion. The ACCC is continuing to examine the role of data and vertical integration as a barrier to entry and expansion. Supply-side platforms (SSPs) SSPs run auctions for the sale of a publisher’s advertising space, as it loads in front of a particular individual. They connect to services that bid for that space on behalf of advertisers (DSPs), and send information about the winning bid of an auction back to the publisher’s ad server. A publisher may use multiple SSPs simultaneously to increase the pool of advertisers bidding on the publisher’s ad inventory. Google is the largest supplier of SSP services in Australia, with the ACCC estimating that it held a 50-60% share of revenue in 2019. There are a number of other significant suppliers in Australia, including Index Exchange, Magnite (formerly Telaria and The Rubicon Project), OpenX, PubMatic, and Xandr, though most of them are much smaller than Google. 

The ACCC’s inquiries indicate that Google’s share seems to be underpinned by its near-exclusive access to demand from Google Ads (one of Google’s two DSPs) and its vertical integration with other ad tech services. The ACCC is continuing to examine a number of factors relevant to the competitive dynamics of SSP services, including the impact of header bidding,8 access to data, and potential incentives to multi-home. 

Publisher ad servers 

Publisher ad servers organise and manage ad inventory on a publisher’s online properties. This involves: 

• providing information to SSPs about the individual visiting the property, and the context in which ad space is being made available, to allow SSPs to run auctions for an advertising opportunity 

• making decisions about how to rank different options for selling a particular advertising opportunity – for example, does the publisher use the highest winning bid from an auction run by an SSP, or give the spot to an advertiser that has a long lasting direct contractual relationship with the publisher? 

• showing the chosen ad (e.g. displaying it in the correct spot on the publisher’s website), and 

• collecting, analysing and reporting on data to allow the publisher to better understand advertiser demand for its ad inventory. 

The ACCC estimates that Google’s publisher ad server (Google Ad Manager) held a share of impressions of 90-100% for publisher ad server services in Australia in 2019. The ACCC is only aware of limited other options available in Australia, including Xandr. Google’s high share likely indicates that competition for publisher ad server services is not vigorous. High switching costs combined with the tendency for publishers to single-home may constitute a significant barrier to entry and expansion. The ACCC is continuing to consider whether the interaction between Google’s publisher ad server and its SSP may further limit the competitive constraint on Google’s publisher ad server. 

Vertical integration and conflicts of interest 

The ACCC considers that, due to Google’s presence across the ad tech supply chain, its strong position in the supply of certain services, and the opacity of the supply chain, Google is likely to have the ability and incentive to favour its own related business interests (self preferencing). 

Allegations of anti-competitive behaviour 

The ACCC has received submissions during the course of the Inquiry alleging that Google’s position across the supply chain may have allowed Google to engage in conduct which has limited competition in the supply of ad tech services. Particular allegations include that:

• Google restricts access to YouTube: Stakeholders allege that by selling YouTube ad inventory exclusively through its own DSP, Google has made its DSP services a ‘must have’ products for many advertisers. 

• Google channels Google Ads demand to Google’s SSP: Stakeholders allege that by channelling demand from its own DSP (Google Ads) to its own SSP, Google has advantaged its SSP in a potentially anticompetitive way. 

• Google preferences own supply side services: Stakeholders are also concerned about the way Google’s SSP and publisher ad server services operate. In particular that Google preferences its own services in a way which may have anti-competitive effects. 

Specific concerns include the way that Google participates in header bidding, fees it charges to participate in Open Bidding (Google’s header bidding ‘solution’), and its Unified Pricing rules. In each of these cases, it is alleged that the ability and incentive for Google to engage in the conduct comes from its position as a supplier of vertically-integrated ad tech services and its strong position in the supply of these services. Stakeholders have also raised concerns regarding Google’s restrictions on other ad tech providers’ ability to access data, such as restricting access to Google’s unique identifiers and Google’s proposal to block the use of third-party cookies on its Chrome web browser. The ACCC is still considering the effect that this conduct may be having on competition across the ad tech supply chain and whether enforcement proceedings under the CCA are required. 

Conflicts of interest 

An ad tech provider’s presence across multiple services in the supply chain can give rise to conflicts of interest. Conflicts can exist in multiple scenarios in the ad tech supply chain. One key example is where an ad tech provider could be providing services to both advertisers and publishers for the same transaction. This could occur where a provider supplies both DSP and SSP services. Here a conflict could arise because:

•  the advertiser customers will want the DSP to buy ad inventory for the lowest possible price, and 

• the publisher customers will want the SSP to sell its ad inventory for the highest possible price. If the DSP and the SSP are both part of the same company, it is difficult for that ad tech provider to fully serve the interests of its advertiser and publisher customers at the same time.

The ACCC is concerned that the presence of conflicts of interest can result in poor outcomes for advertisers and publishers. Google’s leading position across the entire ad tech supply chain means it has attracted conflict of interest concerns of this kind. However, other smaller ad tech providers may have similar conflicts by virtue of their own vertical integration. 

Pricing of ad tech services 

Stakeholders have raised concerns regarding the fees charged across the ad tech supply chain, which affects the revenue received by publishers for their ad inventory. A significant amount of advertiser spend is clearly retained by ad tech providers. Based on information gathered by the ACCC during the Inquiry, the ACCC estimates that on average, fees for ad tech services directly involved in the trading and serving of ad impressions made up 28% of advertiser expenditure on display advertising impressions in Australia in 2019. The ACCC is considering whether greater competition in the supply of ad tech services is likely to increase efficiency and lower prices to the benefit of both publishers and advertisers. 

Opacity in the supply of digital advertising technology services 

For effective competition in the supply of ad tech services, advertisers and publishers need to be able to make informed choices about which services they will use. To do this, they need to be able to assess the price and quality of ad tech providers’ services so that they can effectively compare providers and choose the provider that best suits their needs. 

The speed and complexity of the ad tech supply chain can make it difficult for advertisers and publishers to fully understand how the services within the ad tech supply chain interact and how money moves through the chain. Advertisers and publishers typically cannot directly observe the operations of ad tech services, which means they rely on information provided by the ad tech providers themselves, and sometimes third parties, to assess the price and quality of services. 

The ACCC has considered the extent to which advertisers and publishers have visibility or obtain sufficient information over the price and quality aspects of the ad tech services they acquire. The ACCC is concerned that shortcomings in the information available to advertisers and publishers may be limiting competition and efficiency in the ad tech supply chain. 

Opacity in the pricing of ad tech services 

The transparency of the prices charged for ad tech services has long been a heated issue in the industry. 

Price transparency can mean different things. There is some publicly available information on the average level of fees, or amounts retained across the supply chain. However, fees charged by different ad tech providers can vary significantly by size and metric. Consequently, industry-wide averages, or historical point-in-time figures publicly released for particular products, do not allow advertisers and publishers to fully understand what happens with the ad inventory they are buying or selling. 

Advertisers do not know how much of their own advertising spend reaches publishers, and publishers do not know how much advertisers are paying for their own inventory. Greater transparency over fees or the total amounts retained at each level of the supply chain may also address concerns about ad tech providers retaining ‘undisclosed fees’ in the operation of sequential auctions. 

Advertisers and publishers consider that not having such information affects their ability to make optimal decisions about how to use ad tech services. Specifically:

• advertisers are able to purchase display advertising through channels other than open auction, such as through a direct contract with a publisher. A lack of knowledge about what the other side is paying for ad tech services can make it harder to know if mutually- beneficial direct deals ought to be pursued, instead of relying on real-time auctions. 

• understanding “take rates” across the supply chain would enable advertisers and publishers to focus their expenditure and interactions with the most efficient service providers. For example, as publishers decide which ad should be served on net bids (the advertisers bid less the SSP’s fee), visibility of SSP’s fees could make it easier for advertisers to select the cheapest way to secure inventory, and for DSPs to decide where to bid. 

Opacity of the operation and performance of ad tech services 

Both publishers and advertisers can view a wide variety of metrics from their ad tech providers about the performance of their products The ACCC has identified concerns where publishers and advertisers claim they have insufficient transparency over the operation and performance of services provided to them. 

Publishers have raised concerns about the degree of detail that they receive from Google about its reporting of auction outcomes and ads served on the publisher’s website.  This prevents publishers from properly assessing the performance of, and the incremental revenue provided by, each SSP. Google has publicly stated that the decision not to allow the datasets to be linked in this way was made to protect user privacy, by preventing bid data from being tied to individual users. 

The ACCC has also found that in some cases there are issues with advertisers’ ability to assess the performance of the ad tech services they use. While services exist that allow advertisers to assess the performance of most ad tech services they use, advertisers can find it difficult to assess and compare the performance of Google’s DSPs with its competitors, and track how effective ad campaigns are more generally, because of restrictions in the detail and type of data that Google makes available for this purpose. 

Reported tension between consumer privacy and transparency and/or greater competition 

These examples illustrate a recurring theme in this industry: a tension (real or claimed) between consumer privacy on the one hand and transparency and competition on the other. In each example, publishers or advertisers (as applicable) claim that they need greater access to raw data about the operation of the ad tech service to properly evaluate how well their service providers are performing, and therefore to make effective choices on which services to use. However, Google often publicly claims that privacy legislation, or consumer expectations of privacy, prevent it from releasing the data sought. But without access to the more detailed information, publishers and advertisers consider that they have to make decisions based on trust that the service is operating as claimed, which is unacceptable in a commercial relationship. 

A similar issue is claimed to arise in relation to Google’s proposed changes to the treatment of third-party cookies by its Chrome browser. Google’s stated purpose for the change is to enhance consumer privacy. Google says that its proposed replacement service (as set out in the Google Privacy Sandbox) will allow targeted advertising to continue, but without allowing consumers’ data to leave the Chrome browser, thereby preventing it from being passed on to third parties. Other market participants have criticised this proposal on the basis that advertisers will not be able to see or verify the data used for targeting by the Chrome browser, and it will therefore reduce transparency and heighten the industry’s dependence upon Google’s services. 

This is a difficult issue that can be considered at two levels. First, the specifics of each proposed or current practice can be explored – how accurate is the claim that the further requested information cannot be provided without impinging on consumer privacy law or expectations? The ACCC will further investigate these claims and whether they are motivated by privacy considerations and are not aimed at reducing competitive restraints. 

Secondly, at a conceptual level, if a company takes an action which appears designed to promote consumer privacy which also has negative effects on transparency, how should that conduct be evaluated? In a competitive market, if customers are unhappy with their ability to evaluate the effectiveness of a service provider they will find a different supplier. Given the concentration in the supply of ad tech services, relying on the market alone to provide customers with improved service offerings to deliver transparency appears an unrealistic and insufficient response. The ACCC is continuing to explore the concerns raised in relation to these examples and other practices as part of this Inquiry. However, the ACCC considers that the development of practices and policies that protect consumers’ privacy without impairing competition is essential to resolve this issue. 

Ad agencies 

Ad agencies perform a key role in purchasing ad inventory, including the purchase of programmatic digital advertising but may also add a layer of opacity to the ad tech supply chain. 

Conflicts of interests between ad agencies and their advertiser clients may materialise in some pricing and performance transparency issues relating to the disclosure of rebates, discounts and incentives, and the use of ad tech services that are owned by the agency or holding company. 

However, the ACCC’s preliminary view is that regulatory intervention is not required in relation to the pricing and disclosure practices of ad agencies. The ACCC’s preliminary conclusion is that potential issues relating to ad agency conduct may be mitigated through advertisers informing themselves about the impact of certain practice (e.g. rebates, discounts and incentives, agency-wide fee models, and whether the agency owns any ad tech services) and seeking protections in contracts to ensure their contracting agency acts in their best interests. 

Proposals for consultation 

The ACCC invites stakeholder views on a range of possible proposals that it is considering to address the issues identified in this report. These proposals are based on suggestions received during this inquiry, and the ACCC’s assessment of industry developments. If ultimately recommended by the ACCC, many of these proposals could be implemented through industry arrangements. Should industry participants be unable to reach agreed industry solutions, the ACCC may consider it appropriate to make further recommendations. 

The ACCC also considers it critical that prior to the adoption of any measures of the type outlined below for consultation careful scrutiny is undertaken to ensure those measures could be implemented in a way that sufficiently safeguards the privacy of consumers. 

Proposals to reduce data-related barriers to entry 

As outlined above, the ACCC has identified preliminary concerns about the level of competition in the supply of various ad tech services. The ACCC considers that one of the factors contributing to the current situation is the breadth and depth of data available to Google, compared to its competitors. The ACCC is considering two potential recommendations to reduce data-related barriers to entry and expansion in the supply of ad tech services. 

Data portability measures refer to tools that would increase data mobility at the request of a consumer or advertiser. For example, this could mean a user would be able to instruct Google or Facebook to make certain types of data on their interactions on those platforms available to a news publisher or to another social network on request via a user-friendly interface. Data interoperability measures refer to tools that would increase the data mobility between firms without a request from a consumer. For example, requiring firms with a significant data advantage to offer access to rival firms in adjacent markets to specified types of data in a standardised format, in certain circumstances. Another example is the introduction of a secure common transaction ID or user ID (as discussed at Proposal 5 and Proposal 6 below), which would enable ad tech providers to link together disparate datasets for use in performing ad targeting functions. 

The ACCC considers that increasing data portability and interoperability may promote competition in the supply of ad tech services by enabling market participants to more easily access and use information held by large platforms with a significant data advantage. The ACCC notes, however, that any measures to increase data mobility should be carefully designed to ensure that there are effective mechanisms to manage the risks that de-identified data may become re-identified and to ensure that consumers have effective controls over the sharing of their personal data. As part of its consultation on this proposal, the ACCC welcomes suggestions and feedback from market participants about specific measures of this kind. 

In order to promote competition by levelling the playing field in relation to the data advantage of large digital platforms, the ACCC is considering measures directed at mandating data separation within companies in limited circumstances. This would prevent data gathered in the context of supplying one service from being used in the supply of a different service. chapter 2 of this report expands on different options of this kind. 

Data separation measures were recently recommended by the Competition and Markets Authority (CMA) as part of the powers to make pro-competitive interventions that have since received in-principle support from the UK Government.  However, the ACCC recognises the burden involved with introducing data separation requirements on businesses and the potential reduction in efficiency that would likely result from introducing constraints on the internal handling of data within businesses. Before recommending a measure of this kind, the ACCC would need to be satisfied that these disadvantages would be outweighed by longer-term benefits associated with increasing the ability of smaller firms and new entrants to compete with incumbent firms which currently benefit from a significant data advantage. 

Proposal 1: Measures to improve data portability and interoperability 

The ACCC is considering measures aimed at increasing data portability and interoperability, to reduce barriers to entry and expansion and promote competition in the supply of ad tech services. Any such measures would require safeguards to ensure that consumers have sufficient control over the sharing and processing of their data. 

Proposal 2: Data separation mechanisms 

The ACCC is considering the extent to which data separation mechanisms, such as data silos or purpose limitation requirements, may be effective in levelling the playing field between large platforms with a significant data advantage and rival ad tech providers. ...

Proposal to address concerns around conflicts of interest and self-preferencing 

Many of the concerns raised by stakeholders such as alleged self preferencing by Google have the potential to infringe the misuse of market power provision in the Competition and Consumer Act. The ACCC has not yet reached a view on whether any of the conduct discussed in this report breaches the CCA, but will continue to examine these issues during the Inquiry. 

In many cases, relying on enforcement action may not always be the most effective means of addressing potentially problematic conduct in the ad tech supply chain. The ACCC therefore considers, based on the range of issues raised in stakeholder submissions, that it is worthwhile to seek views on whether specific measures are required to address the risk of self-preferencing. 

Further, section 46 of the CCA does not address all the concerns which can arise from vertical integration in ad tech. In particular, issues which stem from the apparent conflict of interest which arise when ad tech providers act for both an advertiser and publisher in relation to the same transaction. Potential “rules” designed to address the risk of self preferencing could address the market concerns arising from conflicts of interest. 

Proposal 3 – Rules to manage conflicts of interest and self-preferencing in the supply of ad tech services 

The ACCC is considering whether rules should be introduced that would aim to prevent and manage the competition and other issues that can arise from vertical integration. In particular such rules could prevent self-preferencing, and manage conflicts of interest. The high-level obligations which could be covered by these rules include:  requirements to put measures in place to manage conflicts of interest, such as preventing the sharing of information between ad tech services, or obligations to act in the best interest of publisher or advertiser customers  requirements to provide equal access to ad tech services (i.e. level playing field obligations to prevent self-preferencing), and  requirements to increase the transparency of the operation of the supply chain. 

Rules could help address potential problems arising from vertical integration across the supply chain in the following ways.

• Requirements to manage conflicts of interest, such as preventing sharing of information, or best interests obligations, could help to prevent self preferencing conduct, and also provide advertisers and publishers with some confidence that their suppliers are acting in their best interests. This could help to address issues that may arise where a single ad tech provider is acting on behalf of both a publisher and advertiser. 

• Requirements to provide equal access to ad tech services would also help to prevent self-preferencing by ensuring that ad tech providers apply the same rules and give the same information to all market participants. This would help to prevent an ad tech provider in a strong position in the supply of an ad tech service from using that position to provide themselves with a competitive position in another ad tech service. It could also help to prevent a provider from acting in their own interests rather than that of a customer. 

• Requirements to increase transparency would reduce vertically integrated ad tech providers’ ability and incentive to engage in self-preferencing or otherwise act contrary to the interests of their customers. This is because where their customers are able to see whether such conduct is occurring, they will be more likely to switch to another provider.

There are a number of options for the implementation and application of such rules. For example, the ACCC notes that proposals recently put forward by the CMA and the European Commission envisage a range of obligations on those digital platforms which meet certain thresholds to prevent self-preferencing and ensure interoperability:

• The European Commission’s proposed Digital Markets Act, released on 15 December 2020, proposes a range of obligations on gatekeeper firms in respect of ‘core platform services’. That is, those services which act as an important gateway for business users to reach end users such as advertising services, which includes ‘any advertising networks, advertising exchanges and any other advertising intermediation services’.   

• The CMA has proposed an enforceable code of conduct to apply to those digital firms with strategic market status. In respect of a code applicable to firms holding strategic market status in relation to digital advertising, the principles envisaged by the CMA include obligations on a firm holding strategic market status not to influence competitive processes or outcomes in a way that self-preferences their own services and not to bundle services in markets where the platform has market power with other services.

The ACCC seeks feedback on whether rules of this kind are necessary, and if so, whether an industry-led solution is practical, as well as which aspects of current international proposals may be appropriate in Australia. 

Proposals to address issues of supply chain opacity 

The ACCC is considering, and seeking stakeholder views on, measures to address the transparency concerns identified by market participants including:

• the ability for publishers to access information necessary to make informed decisions regarding bidding in auctions and auction results, 

• the ability for advertisers and publishers to have access to information necessary to understand and verify prices charged for the purchase or sale of ad inventory, and the prices charged across the ad tech supply chain, and 

• the ability for advertisers to independently verify ads displayed on Google’s owned and operated inventory, specifically YouTube, and conduct attribution through independent third party providers. 

To enable advertisers to assess DSP services fully and independently and encourage competition, industry should develop a standard that allows full and independent verification of DSP services. This standard should set out minimum requirements for this, along with the categories of data necessary to enable third-parties to provide full and independent viewability, fraud and brand safety verification services. 

Proposal 4 – Implementation of a voluntary industry standard to enable verification of DSP services 

The ACCC considers that this should initially be left to industry to develop and implement, but that other options could be considered if this was not successful. 

As noted earlier, advertisers currently find it difficult to assess and compare the performance of Google’s DSP services with its competitors because of restrictions in the detail and type of data that Google makes available for this purpose. These limitations may be affecting the ability of other companies to effectively compete with Google in the supply of DSP services. 

This proposal seeks to help to address potential issues with advertisers not being able to fully and independently assess the performance of Google’s ad tech services, and thereby enhance competition in the supply of DSP services. 

The ACCC understands that many DSPs already provide for this, and consequently, this proposal would primarily be necessary only to address issues with advertisers’ ability to fully and independently verify DSP services where it is not currently available. 

A fifth proposal the ACCC is seeking stakeholder views on is the introduction of a common transaction ID system in the ad tech supply chain. The ACCC considers that such a recommendation could help to address issues around the transparency of auctions and fees or take rates across the supply chain. 

A common transaction ID would allow providers across the supply chain, as well as advertisers and publishers, to follow individual ad impressions across the supply chain and better observe the performance of their ad tech services. Further, where advertisers and publishers wish to compare data about their own ad tech services, to see if new mutually- beneficial arrangements can be reached between them, they can at times be prevented from doing this due to difficulties in matching data sets. A common transaction ID could help overcome these issues by providing a unique data field that would apply to all aspects of a transaction for a particular ad impression. 

The sixth proposal the ACCC is seeking submissions on is whether the introduction of a common user ID could be used to improve the ability of third parties to provide independent attribution services. A common user ID is different to a transaction ID, in that it allows the tracking of a user (subject to privacy protection) rather than the bids for a particular advertising impression. 

This proposal has the potential to enable attribution providers to more easily interpret and use data about ads delivered across DSPs. Currently, multi-touch attribution can be difficult if DSPs use different user IDs. If users were assigned common IDs accessible to all third- party attribution providers, they would be able to track all ads seen by a user, regardless of the DSP that served each ad. Overall this would improve the ability of attribution providers to provide full and independent attribution of ads served using all DSPs, including Google’s DSPs. This could help to improve transparency over the performance of ad tech services and thereby promote competition in the provision of DSP services more broadly. 

Proposal 5 – Implementation of a common transaction ID 

Industry should implement a common system whereby each transaction in the ad tech supply chain is identified with a single identifier which allows a single transaction to be traced through the entire supply chain. This should be done in a way that protects the privacy of consumers. Proposal 6 – Implementation of a common user ID to allow tracking of attribution activity in a way which protects consumers’ privacy Introduction of a secure common user ID, which ad tech providers would be required to assign to any data used for attribution purposes. This should be done in a way that protects the privacy of consumers. 

Again, an important consideration in deciding whether a common user ID should be used is whether it can be done in a way that protects user privacy. Such an ID would increase the data available to track consumers across the internet, and improve the ability of ad tech providers to build consumer profiles. The ACCC is carefully considering these issues and seeks stakeholder feedback. 

The ACCC’s previous recommendations 

The ACCC’s previous Digital Platforms Inquiry recommended that the Competition and Consumer Act 2010 be amended to include a prohibition on certain unfair trading practices, and the establishment of an ombudsman scheme to resolve complaints and disputes with digital platforms. The ACCC continues to support these previous recommendations. 

While consumers are not customers of ad tech services, the data produced by their online activities is a critical input into many ad tech services. The widespread collection and use of targeting data also has the potential to cause consumer harm, particularly for vulnerable consumers, in circumstances where consumers are not sufficiently informed or have sufficient control over how their data is collected and used for ad targeting purposes. Such behaviour could undermine the integrity of the entire ad tech supply chain. The relationship between consumers and ad tech providers is an example of a relationship that ought to be protected by a prohibition on unfair trading practices. 

Consumers continue to be harmed by online scam ads, with Australians losing over $634 million to scams in 2019. The delivery of scam ads can also harm a publisher’s reputation and give rise to legal risks. Digital platforms should be appropriately accountable for preventing the delivery of fraudulent and scam ads. The ACCC considers that the establishment of an independent ombudsman scheme to investigate complaints in relation to scam ads delivered on digital platforms could provide consumers with an effective avenue for complaint and dispute resolution in relation to the delivery of scam ads on digital platforms.

Computational Antitrust

'Computational Antitrust: An Introduction and Research Agenda' by Thibault Schrepel in (2021) 1 Stanford Computational Antitrust comments 

Computational antitrust is a new domain of legal informatics which seeks to develop computational methods for the automation of antitrust procedures and the improvement of antitrust analysis. The present article first introduces it, then explores how agencies, policymakers, and market participants can benefit from it. Against this background, it sets out a research agenda for the years ahead in view of providing answers to the challenges created by computational antitrust, and better understand its limits.

GDPR

'Data Protection by Design? A Critique of Article 25 of the GDPR' by Ari Ezra Waldman in (2020) 53 Cornell International Law Journal 147 comments 

Europe’s General Data Protection Regulation (GDPR) took effect on May 25, 2018. Article 25, titled, “Data Protection by Design and by Default,” purports to incorporate the concept of “privacy by design” into European data protection law. This Article challenges that common presumption. Although privacy by design is not a new doctrine, having been the subject of academic debate, legal, and regulatory discussions for more than a decade, the final draft of Article 25(1) reflects little, if any, of that history. Relying on multiple forms of statutory interpretation commonly used to interpret European Community legislation, this Article argues that Article 25 of the GDPR lacks any meaningful connection to privacy by design under textualist, contextual, purposive, and precedential interpreta- tions. Only teleological reasoning offers a meaningful way forward. This means that it is up to the European Court of Justice to determine if Article 25(1) will have any chance of protecting European Union citizens and lim- iting the power of data controllers. 

 Waldman argues 

When the General Data Protection Regulation (GDPR) took effect on May 25, 2018, “data protection by design and by default” became the law of the European Union. The concept, embodied in Article 25, Section 1, requires a data “controller” to both at the time of the determination of the means for processing and at the time of the processing itself, implement appropriate technical and organisational measures, such as pseudonymisation, which are designed to implement data-protection principles, such as data minimisation, in an effective manner and to integrate the necessary safeguards into the processing in order to meet the requirements of this Regulation and protect the rights of data subjects. 

This provision is far from clear. This Article leverages a variety of statutory interpretation methods commonly used to interpret European statutory law to discern what Article 25 actually means.3 It concludes that Article 25(1) is hopelessly vague. Neither the text nor its context offers any clarity about Article 25(1)’s requirements, scope, or limitations. Only a teleological approach can rescue Article 25(1) from obscurity and obsolescence. 

Most scholars and industry experts suggest that Article 25(1) codifies privacy by design into law. Daniel Solove has stated that “Article 25 . . . mandates that data protection be built in starting at the beginning of the design process,” reflecting one of the standard academic definitions of privacy by design. Woodrow Hartzog wrote that Article 25, which “requires that core data protection principles be integrated into the design and development of data technologies,” is important because privacy by design is an essential weapon in vindicating privacy rights against preda- tory, data-hungry technology companies. The international consulting firm Deloitte told its clients that “privacy by design” was “new as a legal requirement under” Article 25, requiring companies to embed privacy in the design process. And PrivacyTrust called Article 25 a “key change[ ]” that “provides the recognition of [the right to privacy by design] and how it is to be enforced.” 

There are two problems with that neat narrative, both of which I describe in this Article. First, although the phrase “privacy by design” gen- erally refers to making privacy part of the design process for new technologies, scholars have long disagreed about what that actually means, making it difficult to codify it as a unitary concept. Second, the very diversity of definitions means that the drafters of the GDPR had several choices: they could have codified one version, tried to blend different definitions together, developed another perspective entirely, or used language so vague that the provision would be rendered meaningless. Article 25(1) reflects the last option, comprising language so devoid of meaning that it can hardly be considered to reflect privacy by design at all. I argue that under most methods of statutory interpretation used by the Court of Justice of the European Union (CJEU or Court of Justice), Article 25(1) does not reflect privacy by design. Rather, it was written as a catch-all provision that has no identity of its own. The CJEU will have to leverage teleological reasoning to empower the provision. If it does not, European citizens will have lost what could be a powerful tool of data protection.

Dignity

'Dignity and the Australian Constitution' by Scott Stephenson in (2020) 42(4) Sydney Law Review 369 comments

Today dignity is one of the most significant constitutional principles across the world given that it underpins and informs the interpretation of human rights. This article considers the role of dignity in the Australian Constitution. The starting point is the 2019 decision of Clubb v Edwards, which marked the arrival of dignity in Australia. In that case, the High Court of Australia found that laws restricting protests outside of abortion facilities were justified under the implied freedom of political communication partly on the basis that they protect the dignity of persons accessing those facilities. The article argues that dignity was used in two ways in the Court’s decision: first, as a means of distinguishing natural persons from corporations; and second, as one purpose that a law can pursue that is compatible with the implied freedom. The article develops and defends the first use of dignity, while identifying some challenges that arise with the second use of dignity. 

Stephenson argues

 Since the middle of the 20th century, dignity has become one of the most significant principles in both public international law and domestic public law across the world. The reason being that dignity is ‘a central organizing principle in the idea of universal human rights’. As the recognition of human rights has spread around the globe at the domestic and international level, so too has the recognition of dignity — sometimes understood as a foundation for human rights, sometimes as a freestanding right and sometimes as a principle that guides the interpretation of other human rights. This seismic shift in the legal landscape has largely passed by Australia due to the lack of a national bill of rights. While the International Court of Justice, the European Court of Human Rights, the European Court of Justice, the Inter-American Court of Human Rights, the Federal Constitutional Court of Germany, the Supreme Court of the United States, the Supreme Court of Canada, the Supreme Court of Israel, the Constitutional Court of South Africa and many other courts have issued important judgments on the meaning and use of dignity, the High Court of Australia has said almost nothing about the concept. The High Court’s 2019 decision in Clubb v Edwards is, therefore, a major development because it represents the first time that the concept of dignity has been used to help interpret the Australian Constitution. The case involved a challenge to the constitutional validity of Tasmanian and Victorian legislation prohibiting protests held outside facilities where abortions are provided. The plaintiffs contended that these laws infringed the implied freedom of political communication. The Court dismissed the challenge, with a number of judges holding that the laws were enacted for the purpose of protecting the dignity of persons accessing the facilities and that this purpose is compatible with the constitutionally prescribed system of representative and responsible government. The protection of dignity thus now appears to be a principle with a degree of constitutional recognition in Australia, capable of justifying the imposition of restrictions on the implied freedom. 

This article interrogates the introduction of dignity into the Australian constitutional landscape, advancing three claims. First, the High Court’s decision in Clubb suggests there are two different ways in which dignity might be used in Australia. It can be used in the broad manner mentioned above — to identify one purpose that a law can pursue that is compatible with the constitutionally prescribed system of representative and responsible government (dignity as a legitimate purpose). But it can also be used in a narrower manner as a means of distinguishing the position of natural persons and corporations under the implied freedom. Natural persons have an interest that corporations do not — the protection of their dignity (dignity as a distinctive characteristic). In Clubb, Kiefel CJ, Bell and Keane JJ gesture towards this second use of dignity when they distinguish the case from the situation in Brown v Tasmania, where the Court invalidated legislation prohibiting protests near the site of forestry operations. The protests outside abortion facilities generated a form of harm that was not generated in the case of protests outside forestry operations — harm to the dignity of persons accessing abortion facilities. 

Second, the article develops and defends the narrower use of dignity as a distinctive characteristic. It argues that corporations have generated two challenges under the implied freedom that have presented difficulties for the High Court in recent years. One is the extent to which the political communication of corporations is protected under the implied freedom. Evaluating the Court’s decisions in Unions NSW v New South Wales and McCloy v New South Wales, the article suggests that the Court has not identified a satisfactory legal, as opposed to a factual, means of justifying its conclusions as to when legislatures can restrict the political communication of corporations. It argues that dignity as a distinctive characteristic might provide such a justification. The second challenge is the extent to which restrictions on political communication can be imposed to protect corporations from harm. The article argues that dignity as a distinctive characteristic, as gestured towards in Clubb, is a useful and justifiable way of differentiating between, on the one hand, the scope of the legislature’s ability to protect corporations from harm and, on the other hand, the scope of the legislature’s ability to protect natural persons from harm.   

Third, the article considers two issues that arise with the broader use of dignity as a legitimate purpose. One issue is the uncertainty that surrounds the meaning of dignity. As dignity has many different, and sometimes contradictory, aspects, the Court will need to provide further guidance as to what the term means in the Australian constitutional context. This will be no easy task. Take, for example, the aspect of dignity that was the focus of Clubb — the prevention of unwanted messages being forced upon people. The difficulty is that almost every political protest involves forcing unwanted messages upon people — people passing the protest in the street, people entering the legislative building, and so on. It cannot therefore be the case that the prevention of unwanted messages being forced upon people is compatible with the constitutionally prescribed system of representative and responsible government in all circumstances. It must be understood as the protection of particular messages being forced upon particular people in particular circumstances. 

 The second issue that arises with the broader use of dignity as a legitimate purpose is the uncertainty that surrounds the use of dignity. In Australia, there is a risk that dignity will only be recognised as relevant to the law’s purpose, not also the law’s effect on speakers, due to the limited scope of the implied freedom of political communication. The article identifies two related problems with this path. One is that it creates a partial and distorted conception of dignity. As all natural persons are understood to have dignity, it is misleading to recognise the dignity of listeners and disregard the dignity of speakers. The other is that it flips the principal objective of dignity on its head. Dignity is understood, first and foremost, as a justification for the existence of rights and freedoms, not as a justification for their abrogation. If the High Court were to use dignity only as a legitimate purpose, it would turn the concept solely into a vehicle for limiting rights and freedoms. 

The article is divided into three parts. Part II advances the first claim by providing an overview of the High Court’s invocations of dignity in Clubb. Part III makes the second claim by analysing the Court’s approach to corporations and the implied freedom, and the role that dignity as a distinctive characteristic has played and could play in the future. Part IV puts forward the third argument by highlighting the challenges that the Court will need to confront if it intends to use dignity as a legitimate purpose.

IP Theory

'Intellectual Property for Humanity: A Manifesto' by Phoebe Li in Daniel Gervais (ed) ATRIP Research Handbook in Intellectual Property (Elgar, 2021) comments 

This chapter considers the challenge posed by Peter Drahos’ work on the ‘duties of privilege’, and provides a normative analysis of an intellectual property (IP) regime by articulating IP duties as a lens for defining the optimal scope of IP monopolies. It builds on a correlative duty-based approach as a parameter to better approximating dignitarian thoughts in IP. A paradigm shift to a balanced framework incorporating the duty approach would reconfigure the imbalance and redress the undesirable consequences of inequality. 

A duty-based approach is not advocating a dichotomy regime separating rights from duties or replacing rights with duties, but a binary one taking full advantage of the extant IP flexibilities by embedding a sense of belonging, connectedness, honour and respect in a community of IP rights. A duty-based approach will work towards a collaborative humanitarian discourse and serve as a nuanced underpinning to the interface of IP power and competition where impacts will benefit society. Internal and external forces are identified for regulating IP following a comprehensive study on the philosophies of ownership. It concludes by proposing the primary waves of IP duties: a duty to self-moderation; a duty to benefit sharing; a duty to open innovation, and a duty to dissemination.

Consent

'Consent as a Free Pass: Platform Power and the Limits of the Informational Turn' by Elettra Bietti in (2020) 40 Pace Law Review 307 comments

 Across the United States and Europe, notice and consent, the act of clicking that “I have read and agree” to a platform’s terms of service, is the central device for legitimating and enabling platforms’ data processing, acting as a free pass for a variety of intrusive activities which include profiling and behavioral advertising. Notwithstanding literature and findings that lay significant doubts on notice and consent’s adequacy as a regulatory device in the platform ecosystem, courts, regulators and other public authorities across these regions keep adopting and legitimating these practices. While consent seems a good proxy for ensuring justice in the platform economy, it is an empty construct. 

This paper explains how notice and consent practices in the platform economy are not only normatively futile but also positively harmful. Narrow understandings that focus on voluntariness and disclosure such as the ones generally adopted by regulators and courts fail to account for the systemically unjust background conditions within which voluntary individual acts of consent take place. Through such narrow approaches, regulators are failing to acknowledge that consent cannot be reasonably taken to morally transform the rights, obligations and relationships that it purports to reshape. Further, it positively harms consumers in at least three ways: burdening them with decisions they cannot meaningfully make, subordinating their core inalienable rights to respect and dignity to the economic interests of platforms, and creating widespread ideological resistance against alternatives. Notice and consent as a discourse is hardly contestable and is currently part of the rigid background of assumed facts about our digital environment. 

As new legislation is devised in the US and new opportunities to reinterpret the GDPR present themselves in the EU, we must be more courageous in looking beyond the facade of individual control and instead must grapple with the core structure of corporate surveillance markets. The longer we fail to acknowledge consent’s irrelevance to data governance, the longer we will deny ourselves respect and protection from the ever-growing expansion of digital markets into our lives.