Competition and Consumer (Price Inquiry—Digital Advertising Services) Direction 2020

This instrument, the Competition and Consumer (Price Inquiry,Digital Advertising Services) Direction 2020, is a formal direction from the Treasurer to the Australian Competition and Consumer Commission, made under the Competition and Consumer Act 2010 (see s 3 and the signature block dated 10 February 2020). It requires the Commission to hold a price inquiry into specified markets for the supply of digital advertising-related goods and services (s 5(1) and s 5(2)). The Direction sets the scope of the inquiry, prescribes the specific matters the Commission must take into consideration (s 6), imposes timelines for an interim report and a final report to the Treasurer (s 7(1)(a) and s 8), and restricts public availability of any interim report until authorised by the Treasurer (s 7(2)).

Mechanically, the Direction does the following:

• Directs the ACCC to conduct an inquiry into the markets for supply of digital advertising technology services and digital advertising agency services (s 5(1) and s 5(2)).
• Excludes certain subject matter from the inquiry, including supplies by State or Territory authorities, exempt supplies, review of other Australian laws relating to communications, broadcasting, media, privacy or taxation, Commonwealth-funded programs or policies except for competition and consumer protection, and the supply of creative input for advertising (s 5(1)(a)-(e)).
• Prescribes matters the Commission must take into account when holding the inquiry, with detailed subpoints covering competition intensity, availability of information, revenue retention, concentration of power, auction and bidding processes, mergers and acquisitions, supplier behaviour, contracts and corporate structures, and service satisfaction (s 6(a)-(c) and subparagraphs).
• Requires an interim report to be delivered to the Treasurer by no later than 31 December 2020 and instructs that interim reports are not to be placed on public inspection until authorised by the Treasurer (s 7(1)(a) and s 7(2)).
• Requires completion of the inquiry and delivery of a final report to the Treasurer by no later than 31 August 2021 (s 8).

The instrument defines key terms used in the Direction, including tailored definitions for digital advertising categories and references broader statutory definitions to the Competition and Consumer Act 2010 (s 4). The Direction does not itself create penalties, nor does it set out investigatory powers or procedural detail for how the Commission will obtain information; it operates as a directive that shapes the Commission’s inquiry function under the Act.

The Direction organises the inquiry around three main subject categories and a set of analytical lenses.

1. Subject categories:

   • Digital display advertising services, defined as opportunities for placement of advertising by way of the internet but expressly excluding classified advertisements and advertising provided in conjunction with the search results of internet search engines (s 4). The examples attached make clear this covers banner or video ads on webpages, in-app placements, and ads associated with social media content (s 4, Examples).
   • Digital advertising technology services, defined as services that provide for or assist with automated buying, selling and delivery of digital display advertising services (s 4).
   • Digital advertising agency services, defined as services supplied to advertisers relating to negotiating, acquiring or managing digital display advertising services (s 4).

2. Scope and exclusions:

   • The inquiry must focus on the markets for supply of the two service categories above and digital display advertising services (s 5(2)).
   • The inquiry must not extend to supplies by State or Territory authorities, exempt supplies, review of other Australian laws relating to communications, broadcasting, media, privacy or taxation, the operation of Commonwealth-funded programs or policies (apart from competition and consumer protection), nor the supply of creative input for advertising (s 5(1)(a)-(e)). Those exclusions narrow the legal and policy terrain the Commission may examine.

3. Directed analytical framework:

   • The Treasurer requires the Commission to take into account the intensity of competition and market efficiency for the relevant services, with specified subfactors: impact on competition in digital display advertising services, availability of information to advertisers, publishers and market participants, revenue retention by suppliers, market concentration, auction and bidding processes, mergers and acquisitions, and supplier behaviour including service characteristics and terms and conditions (s 6(a)(i)-(vii)).
   • The Direction singles out relationships between suppliers and customers, including whether corporate structures or contractual arrangements negatively affect competition or informed decision-making (s 6(b)).
   • It also requires consideration of whether the services are being provided to the satisfaction of all market participants (s 6(c)).

This Direction identifies a defined set of market participants and public actors that are central to the inquiry and either inside or excluded from its scope.

Primary affected private actors:

• Advertisers, defined in the instrument as a person that places an advertisement (s 4). Advertisers are a focal class because the Direction requires assessment of how revenue shares and information flows affect advertisers (s 6(a)(iii) and s 6(a)(ii)).
• Suppliers of digital advertising technology services, i.e. entities that provide or assist with automated buying, selling and delivery of digital display advertising services (s 4 and s 5(2)(b)). These suppliers are among the core subjects of the inquiry (s 5(2)).
• Suppliers of digital advertising agency services, i.e. entities that negotiate, acquire or manage digital display advertising services for advertisers (s 4 and s 5(2)(c)). These agencies are also core subjects (s 5(2)).
• Publishers and other market participants who sell inventory or participate in the ad ecosystem are explicitly included as recipients of attention, particularly regarding information availability and satisfaction (s 6(a)(ii) and s 6(c)).

Public or institutional actors:

• The Australian Competition and Consumer Commission, which is required to hold the inquiry and to consider the enumerated matters (s 5(1), s 6).
• The Treasurer, who receives both an interim report and a final report (s 7(1)(a) and s 8) and who controls public release of an interim report (s 7(2)).

Explicitly excluded actors and subject matter:

• State or Territory authorities are excluded from the inquiry to the extent they supply goods or services (s 5(1)(a)).
• Exempt supplies under the definition in subsection 95A(1) of the Act are excluded (s 5(1)(b)).
• The inquiry is not to be held in relation to supply of goods and services by particular person or persons, under subsection 95J(2) of the Act, as referenced in s 5(3). The instrument thereby directs the Commission not to limit the inquiry to specified individual suppliers (s 5(3)).
• The Direction precludes review of other Australian laws in communications, broadcasting, media, privacy or taxation, and precludes review of Commonwealth-funded programs or policies other than competition and consumer protection (s 5(1)(c)-(d)).
• The supply of creative input for advertising is outside the inquiry (s 5(1)(e)).

The instrument primarily imposes duties on the Commission and prescribes matters the Commission must consider; it does not create new private statutory rights or direct obligations for market participants beyond participation in the inquiry process where that arises in practice.

Duties on the Commission:

• Hold the inquiry: Under subsection 95H(1) of the Act the Commission is required to hold an inquiry; this Direction specifies that the inquiry must be into the markets for digital advertising technology services and digital advertising agency services (s 5(1) and s 5(2)). The Direction therefore operationalises the Commission’s duty under the Act in respect of these markets.
• Constrain scope: The Commission must exclude certain areas from the inquiry, including supplies by State or Territory authorities, exempt supplies, review of specified Australian laws and Commonwealth programs or policies unrelated to competition and consumer protection, and creative input for advertising (s 5(1)(a)-(e)). This is a duty to restrict the inquiry’s reach.
• Apply a prescribed analytical framework: The Commission is directed to take into consideration a detailed list of matters when holding the inquiry, encompassing competition intensity, market efficiency, information availability, revenue retention across the supply chain, concentration, auction/bidding processes, mergers and acquisitions, supplier behaviour, contractual relationships and participant satisfaction (s 6). The Commission must address these matters in its analysis.
• Reporting duties: The Commission must give an interim report to the Treasurer by no later than 31 December 2020 (s 7(1)(a)) and must complete the inquiry and provide a final report by no later than 31 August 2021 (s 8). The Commission is also directed not to make the interim report publicly available unless the Treasurer authorises release (s 7(2)).

Rights and obligations of market participants:

• The instrument does not specify direct statutory rights or obligations for advertisers, agencies, technology providers, publishers or other private parties. The definitions identify classes of persons who are relevant for the inquiry (s 4), and the Commission’s inquiry will necessarily involve those market participants. The Direction does not describe compulsory processes, information notice powers or confidentiality rules; it simply sets the matters the Commission must consider and the timeline for reporting (s 5-s 8). Any procedural rights or duties of participants, such as notice or rights in relation to confidential information, would derive from the Act and the Commission’s inquiry procedures, not from this Direction text itself.

The Direction does not create any offences, penalties, or enforcement mechanisms within its text. Its operative provisions direct the Commission about the conduct of an inquiry and the matters to be considered (s 5-s 8). The instrument is silent on:

• Compulsion powers for the Commission to require documents or testimony from market participants.
• Sanctions for non‑cooperation by private parties.
• Financial penalties or other enforcement measures.

Because the Direction is made under the Competition and Consumer Act 2010 (s 3), any coercive powers, enforcement procedures, or penalties that the Commission might use in the course of conducting a statutory inquiry would stem from provisions of the Act itself. The Direction references particular subsections of the Act, namely subsection 95H(1) for the requirement to hold an inquiry, subsection 95J(1) and (2) with respect to the inquiry’s subject and non-person-specific focus, subsection 95J(6) for giving directions on matters to be taken into consideration, subsection 95P(3) regarding public inspection constraints, and subsection 95K(1) for the time period for completion (s 5(1), s 5(3), s 6, s 7(2), s 8). However, this Direction does not reproduce or specify the contents of those statutory provisions, and it does not itself set out the Act’s investigatory or enforcement powers.

Practical consequence:

• For regulated entities, the absence of penalties or compulsion mechanisms in the Direction means the immediate statutory obligation is on the Commission to deliver the inquiry and reports according to the Direction’s parameters (s 5-s 8). Any obligation to provide information or to respond in a particular way to ACCC requests would be determined by the Act and the Commission’s exercise of any powers the Act confers. The Direction therefore shapes the ACCC’s analytical remit and reporting obligations but does not, on its face, alter enforcement tools or create new sanctions.

Transparency constraint as an enforcement-relevant feature:

• The Direction instructs the Commission not to make the interim report available for public inspection until the Treasurer authorises release (s 7(2)). That is a constraint on public scrutiny that could affect the timing and public visibility of any interim findings, which in turn affects reputational and market signalling consequences for participants. The Direction itself does not define penalties, but this control over interim-report disclosure is a material design choice affecting external enforcement dynamics and stakeholder pressure.

The Direction is explicitly framed as an instrument made under the Competition and Consumer Act 2010 (s 3). It cross-references definitions and statutory subsections of the Act rather than reproducing them. Two modes of interaction with other laws are evident in the text.

Reference and deferral to the Act:

• Section 4 contains a note that expressions used in the Direction have the same meaning as in the Competition and Consumer Act 2010 “as in force from time to time,see paragraph 13(1)(b) of the Legislation Act 2003” and then states that certain terms such as exempt supply, goods, inquiry, services, State or Territory authority and supply have the meanings given by subsection 95A(1) of the Act (s 4). The Direction therefore depends on the Act’s definitions to establish the boundaries of key terms.

Limits on review of other Australian laws and Commonwealth policies:

• The Direction expressly precludes the Commission from reviewing the operation of any Australian law other than the Act that relates to communications, broadcasting, media, privacy or taxation (s 5(1)(c)). This is a direct delimitation of the inquiry’s interface with other statutory regimes in those policy areas.
• The Direction also precludes review of “the operation of any program funded by the Commonwealth, or any policy of the Commonwealth (other than policies relating to competition and consumer protection)” (s 5(1)(d)). The effect is to prevent the inquiry from being used to evaluate or critique Commonwealth programs or policies in media, communications or related spheres, except insofar as they directly engage competition and consumer protection.

Specific exclusions and the Act:

• Section 5(1)(a) and (b) exclude supplies by a State or Territory authority and exempt supplies as defined by subsection 95A(1) of the Act. Thus the Direction interacts with state-level actors and the Act’s own exemptions to shape the fields the inquiry may cover.
• The Direction also relies on the Act’s inquiry provisions. It cites subsections of the Act it is operating under: subsection 95H(1) as the source of the Commission’s requirement to hold an inquiry (s 5(1)), subsection 95J(1) and (2) to define the inquiry’s subject matter and prohibition on person-specific focus (s 5(2) and s 5(3)), subsection 95J(6) in relation to directions on matters to consider (s 6 and s 7(1)(a)), subsection 95P(3) in relation to public inspection of interim reports (s 7(2)), and subsection 95K(1) concerning the period for completing the inquiry (s 8). The Direction therefore functions as an exercise of the Treasurer’s power under those statutory subsections to direct the Commission’s inquiry work.

The Direction contains a commencement table and an internal note about the table’s scope, but the instrument text presented contains no subsequent amendments. Relevant textual evidence is as follows.

Commencement:

• Section 2 sets out a table with commencement information. Column 1 lists “1. The whole of this instrument” and Column 2 states “The day after this instrument is registered” as the commencement detail, with a note that the table relates only to the provisions of the instrument as originally made (s 2(1) and the accompanying table). The instrument therefore commenced the day after registration according to the instrument’s own commencement provision.

Authorising note on definitions and legislative context:

• Section 4 includes a note that expressions have the same meaning in this instrument as in the Competition and Consumer Act 2010 “as in force from time to time,see paragraph 13(1)(b) of the Legislation Act 2003”, and then defines particular terms by reference to subsection 95A(1) of the Act (s 4). This is not an amendment history note, but it ties the definitions to the parent statute as it may be amended over time.

No amendment entries:

• The instrument contains the line “Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.” That statement (in s 2(1) notes) indicates the commencement table is a snapshot of the original instrument and not updated retrospectively (s 2(1) and table notes). The instrument as provided does not include any later amending items, schedules, or dates.

Practical implication:

• From the text supplied there are no recorded amendments to the Direction itself. Any later amendments, revocations or replacing instruments would not appear in this source. For the current legal position, one must check legislative instruments registers or the Act to see if the Direction has been altered, revoked, or replaced.

The Direction text supplied does not contain any references to litigation or adjudication. It is a statutory direction from the Treasurer to the Commission and there is no litigation record included in the instrument itself.

Observations supported by the instrument:

• The instrument does not specify any judicial review or dispute-resolution pathway distinct from the ordinary avenues available for challenging administrative action. It also does not list any previous proceedings, determinations or case references.
• The Direction relies on statutory subsections of the Competition and Consumer Act 2010 to set the ACCC’s inquiry remit and timeframe (s 5-s 8). Any litigation that might later arise about the validity, scope, or implementation of the Direction would engage administrative law principles and the provisions of the Act, but the Direction does not itself narrate or reference any past or pending litigation.

What to check outside the instrument:

• Any practitioner or researcher seeking litigation history should consult court databases, administrative law records, and the register of disallowable instruments to identify whether the Direction has been the subject of challenge or whether any actions were instituted in relation to the ACCC’s conduct of the inquiry. The instrument itself provides no such history.

The Direction contains several provisions or design choices that may produce practical surprises for users, respondents and analysts. The following items draw directly on the text and identify consequences and risks that derive from its wording.

1. Narrow statutory subject definitions:

   • Digital display advertising services are defined to exclude classified advertisements and advertising provided in conjunction with the search results of internet search engines (s 4). Parties may assume search‑related advertising is covered by a digital ad inquiry; here it is not. Misunderstanding this exclusion could misdirect submissions or data collection efforts.

2. Exclusion of State or Territory authority supplies and exempt supplies:

   • The inquiry is not to extend to supplies by State or Territory authorities or to exempt supplies as defined in subsection 95A(1) of the Act (s 5(1)(a)-(b)). Entities who view themselves as public authorities or who supply services that may be exempt under the Act should be aware they fall outside the inquiry’s scope.

3. No person-specific inquiries:

   • Section 5(3) instructs that the inquiry is not to be held in relation to supply of goods and services by a particular person or persons, reflecting subsection 95J(2) of the Act. That prevents the Commission from tailoring the inquiry to specific named companies or focusing the report on particular market players. Market participants seeking focused scrutiny of a single firm through this mechanism will not obtain it.

4. Prohibition on reviewing other laws and policies:

   • The Direction precludes review of laws relating to communications, broadcasting, media, privacy or taxation and precludes assessment of Commonwealth-funded programs or policies other than competition and consumer protection (s 5(1)(c)-(d)). If the issues of concern intersect heavily with privacy law or communications regulation, the Commission is directed not to evaluate those legal regimes, potentially limiting the inquiry’s ability to recommend statutory or regulatory fixes in those domains.

5. Interim report secrecy:

   • The Commission must give an interim report to the Treasurer by 31 December 2020 and is directed not to make that interim report available for public inspection until the Treasurer authorises release (s 7(1)(a) and s 7(2)). This introduces an executive discretion over interim transparency and can delay market and stakeholder reactions to preliminary findings.

The Direction principally imposes duties on the Commission, not on private parties. Compliance therefore divides into actions for the Commission and practical steps market participants should take if they wish to engage with the inquiry.

For the Commission (obligations explicit in the Direction):

• Scope control: Ensure the inquiry’s remit conforms to s 5(1) and s 5(2) by focusing on markets for digital advertising technology services and digital advertising agency services and on digital display advertising services as defined in s 4, while excluding the matters listed in s 5(1)(a)-(e).
• Analytical checklist: Structure the inquiry so that the Commission systematically addresses each of the matters the Treasurer directed it to take into consideration under s 6(a)-(c). That includes:
  • Assessing intensity of competition and market efficiency and explicitly evaluating each subfactor listed in s 6(a)(i)-(vii).
  • Analysing supplier-customer relationships and the effects of corporate structures and contractual arrangements on competition and informed decision-making (s 6(b)).
  • Assessing whether services are being provided to the satisfaction of market participants (s 6(c)).
• Reporting schedule and confidentiality: Prepare an interim report to the Treasurer by 31 December 2020 and the final report by 31 August 2021, and do not make the interim report publicly available unless the Treasurer authorises disclosure (s 7(1)(a), s 7(2), s 8). Implement internal processes to meet those deadlines and to handle the interim-report confidentiality constraint.
• Market-level focus: Ensure the inquiry remains market-focused and does not target a particular person or persons pursuant to s 5(3).

For market participants (practical steps, recognising the Direction itself does not impose direct obligations):

• Monitor notices and engagement channels: The Direction does not set procedural steps for submissions, but stakeholders should watch for ACCC calls for information, public hearings or submissions, and prepare to respond promptly, particularly given the short timelines set by s 7(1)(a) and s 8.
• Prepare data packages aligned to s 6 factors: If providing information, frame submissions around the Direction’s enumerated matters: competition intensity, information availability, revenue retention, concentration, auction/bidding mechanics, M&A impact, supplier behaviour, contractual arrangements and satisfaction metrics (s 6). Tailor evidence to these headings to maximise relevance.