AUSTRALIAN COUNCIL ON CHILDREN AND THE MEDIA PO Box 1240, Glenelg South SA 5045

ABN: 16 005 214 531 Phone: (08) 8376 2111 Fax: (08) 8376 2122

Web: www.childrenandmedia.org.au E-mail: info@childrenandmedia.org.au

Promoting healthy choices and stronger voices in children’s media

Australian Council on Children and the Media Patrons: Steve Biddulph AM and Baroness Susan Greenfield

Pres: Prof. Elizabeth Handsley; Hon CEO: Barbara Biggins, OAM

Submission to ACCC Inquiry into digital platforms

February 2019

Thank you for the opportunity to make a submission on this important topic.

The Australian Council on Children and the Media (ACCM) is a peak not-for-profit national community organisation whose mission is to support families, industry and decision makers in building and maintaining a media environment that fosters the health, safety and wellbeing of Australian children.

ACCM membership includes Early Childhood Australia, the Australian Council of State Schools Organisations, the Australian Primary School Principals Association, the Association of Heads of Independent Schools Australia, the Australian Education Union, the Parenting Research Centre, the Council of Mothers’ Union in Australia, the NSW Parents Council, the South Australian Primary Principals Association, and other state-based organisations and individuals.

ACCM’s core activities include the collection and review of research and information about the impact of media on children’s development, and advocacy for the needs and interests of children in relation to the media.

ACCM welcomes this Inquiry and broadly supports the Preliminary Recommendations (PRs). The subject matter is of particular significance to children for two reasons: first, because they spend considerable time online, including on digital platforms; and second, because they have special needs as consumers. This is due in particular to their restricted capacity to identify and think critically about advertising; and to fully appreciate the implications of giving consent to the use of personal information. Moreover the products advertised online are not necessarily appropriate to children; and there is evidence that children’s apps frequently violate apparent protections such as the US Children’s Online Privacy Protection Act by failing to make appropriate use of options to disable prohibited covert tracking and behavioural advertising.1

We are particularly pleased to see the issue of digital platform regulation addressed from a consumer protection perspective, because this gives clear recognition to the power imbalance between platform and consumer. Such recognition is more important than ever, considering that some of the platforms in question have unprecedented power for private corporations. Consumer protection can give recognition to the special vulnerability of some groups of consumers, which is a useful way of framing the needs of children, especially in relation to advertising and marketing and to the protection of personal information.

ACCM is a signatory to the attached detailed letter that has been organised by the Foundation for Alcohol Research and Education (FARE). Please treat the points raised in that letter as incorporated by reference into this submission. We wish also to make the following specific comments.

PR4 and PR5: As a general principle, ACCM supports independent regulation, rather than self-regulation, for the protection of children’s rights and interests as media users. In our experience self-regulation invariably results in codes that fail to restrict companies in doing what they want to do; that are interpreted in the manner most favourable to the companies’ interests; and that operate more as a public relations exercise than as a vehicle for corporate social responsibility.

1 Reyes et al, ‘“Won’t Somebody Think of the Children?” Privacy Analysis at Scale: A Case Study With COPPA’ (2018) International Computer Science Institute Proceedings on Privacy Enhancing Technologies https://www.icsi.berkeley.edu/icsi/node/6013.

Promoting healthy choices and stronger voices in children’s media since 1957

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We note an additional advantage to these PRs: as well as providing protection directly, they have the potential to make for a more informed consumer base, thereby empowering parents and others to protect children and educate them in safe and appropriate use of digital platforms.

On the question of regulatory imbalance, ACCM is generally not convinced that uniformity across platforms is necessary. Each platform has different regulatory challenges and the quest for uniformity often translates into a race to the bottom. If it is possible to regulate some plaforms more effectively than others, such regulation should be retained. This way, relatively safe spaces can be provided for families and children to enjoy media content.

PR6 – creation of a content classification scheme: Close consideration should be given to how this would fit with the National Classification Scheme (NCS). The ACCC would no doubt be aware of the Australian Law Reform Commission’s 2012 Report on this matter and developments since then, including the fact that very few of the recommendations have been implemented. ACCM has been advocating a major overhaul of the NCS for some time, but not along the lines recommended by the ALRC. Rather we argue for a scheme that includes age-based categories, as these would be the most useful and informative for families and others when selecting content for young people. A statement of our position on these matters can be found at https://childrenandmedia.org.au/taking-action/current-campaigns/classification and we would be very happy to expand on that statement at any time.

PR6 – single agency: ACCM is generally in favour of ‘one-stop shops’ as these ease the burden consumers would otherwise face in finding the appropriate body to contact. They also make for a more coordinated approach, and less risk that issues will fall ‘between the cracks’.

PR 8(a) – ‘particularly if addressed to a child’: Regulation for the protection of children’s interests should focus on whether children are likely to see content, rather than whether it is addressed to them. In our experience regulations that revolve around the target audience are too easily manipulated by companies that have ways of packaging content so as to support a claim it is not addressed to children, when in fact it is highly appealing to them and likely to engage their attention. The likely audience, as distinct from the target audience, is easier to ascertain objectively, and therefore a clearer basis for regulation.

PR8(c) – capacity of guardians to consent on behalf of children: ACCM has reservations about this, and would suggest more direct protections from policy and legislation. As we know, some adults are themselves vulnerable consumers and have limited ability to protect their own interests, let alone those of the children for whom they are responsible. We submit that all children deserve the same level of protection, and this can be provided only by the government.

PR9: ACCM submits that other groups should be involved in development of the Code of Conduct – not just digital platforms themselves. Once again we have long experience of industry bodies drafting hollow and self-serving codes for themselves. The interests to be protected should also be at the table.

Area for further analysis and assessment 8 (opt-in targeted advertising): ACCM submits that there should be a different approach for users under 18. For example, ‘targeted’ advertising could be used to protect such users from ads for products that should not be advertised to them, such as alcohol and gambling services. In such cases, users arguably should not be able to opt out of targeted advertising.

Thank you once again for the opportunity to make this submission. If you would like to discuss any of these matters further you are most welcome to contact our President, Elizabeth Handsley, on 0448 898 185 or at handsley.elizabeth@gmail.com.

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PO Box 19 Deakin West ACT 2600 | info@fare.org.au | (02) 6122 8600 1 of 4

15 February 2019

Australian Competition & Consumer CommissionDigital Platforms Inquiry GPO Box 3131 Canberra ACT 2601platforminquiry@accc.gov.au

Dear Mr Sims

JOINT SUBMISSION TO THE PRELIMINARY REPORT INTO DIGITAL PLATFORMS – PROTECTING CHILDREN FROM UNHEALTHY MARKETING

Thank you for the opportunity to provide input to this Digital Platforms Inquiry. We have come together to make this short submission to highlight our concerns regarding the current lack of regulation protecting children from unhealthy commodity marketing and to urge the ACCC to ensure that all recommendations consider the rights of children to safely use and enjoy the online spaces created by digital platforms.

As highlighted in the Preliminary Report, the current regulatory framework is failing consumers because digital platforms and online marketing are largely unregulated. Content regulation, including advertising content and marketing of unhealthy products aimed at children, is especially concerning.

The emergence and growth of marketing on digital platforms, including social media, has created new opportunities for marketers of unhealthy commodities such as alcohol, unhealthy food and gambling. Digital platforms offer several advantages to marketers – as well as being cheaper than traditional media, they enable targeted marketing, lack transparency, make parental surveillance hard (diminishing parental control) and have only minimal regulatory requirements.1

Children and advertising

There is unequivocal evidence that children are significantly influenced by advertising and marketing. They are increasingly targeted due to their influence on parents – the nag factor – and the opportunity to establish brand loyalty and connectivity.2 Children’s brains are still developing and they lack the higher-level reasoning skills and life experience of adults, making them an inherently vulnerable group. For this reason it has long been accepted that any content, including advertising, directed to them or that they are exposed to in their daily lives, should be highly regulated.

Further, evidence clearly shows that young people’s exposure to alcohol marketing increases their alcohol consumption and increases their likelihood to start drinking earlier.3,4,5 Additionally, children’s exposure to unhealthy food and sugar-sweetened beverages marketing is undisputedly linked to overweight and obesity. 6,7 The impact of unhealthy marketing on children’s behaviour can also be seen in relation to gambling, with exposure to gambling advertising increasing positive attitudes to gambling and intentions to gamble.8

Children’s online engagement

Children across Australia access digital media daily, predominantly on mobile devices, most commonly using social media and video platforms. Despite digital platforms having age requirements we know many children under the age of 13 regularly use Facebook, Snapchat and Instagram and this issue is seen globally.9 The number of children interacting with digital platforms continues to grow.

PO Box 19 Deakin West ACT 2600 | info@fare.org.au | (02) 6122 8600 2 of 4

Marketing content has developed in sophistication, now designed to be entertaining, immersive and engaging, thereby increasing the difficulties of distinguishing an advertisement by the average adult consumer, let alone a child. As stated in a report from the World Health Organization, “The algorithms of the major platforms give preference to less overt, longer-viewed advertisements (ads), thus bypassing any media literacy children might have and amplifying the power of practices in traditional media.”10 An increasing use of native content, interactive games, influencers and other novel marketing techniques further blur the lines between content and advertising, and have proven to be highly attractive to young people.

Use of children’s data and targeted advertisements

It is clear that marketers are currently using children’s data to target them with advertisements. This raises serious ethical questions regarding the monetisation and use of minors’ data – effectively selling the use of children’s data to marketing agencies. We believe that it is unconscionable to use a minor’s data to target them with advertisements for unhealthy commodities and strongly urge the ACCC to ensure that all minors are automatically excluded from targeted advertising and to prevent the use of children’s personal data for tracking, targeted advertising and other marketing strategies.

As the Preliminary Report notes, the scope of this problem is hard to quantify, as there is very limited data available on exactly how and when people are targeted and who holds what data. The ACCC must ensure that efforts to increase transparency around data and targeting recognise the importance of monitoring marketing tactics aimed at vulnerable groups, including children. One way to achieve this would be to expand the scope and powers of the regulatory authority – outlined in recommendation four – to include a consumer facing element in addition to advertising and related business oversight.

Priorities

The lack of regulation and the insufficient protections for children against the collection and use of their personal data for unconscionable behaviour, such as targeted marketing by unhealthy commodity industries, requires immediate and decisive action. While we are supportive of a comprehensive review of the media regulatory framework (recommendation six), it is paramount that this not halt measures to protect children in the meantime, by extending regulation, increasing transparency or other methods.

In conclusion we ask that the ACCC in its final report:

1. Acknowledge that in regulating digital platforms consideration must be given to the protection of children and their ability to safely use digital platforms.

2. Recommend that regulations designed to protect children from unhealthy marketing, including unhealthy food, alcohol and gambling, are applied to all media formats, including digital platforms.

3. Recommend that all minors are automatically opted out of targeted advertising and prohibit the use of children’s personal data for tracking, targeted advertising and other marketing strategies.

4. Recommend increasing data collection on targeted advertising used by unhealthy commodity industries to promote transparency and accountability and ensure compliance, potentially through an expanded role for digital platforms’ regulatory authorities.

5. Impose sanctions and monetary penalties for regulatory breaches involving the marketing of unhealthy products to children and the use of children’s personal data.

6. Consider international cross-border strategies to protect the integrity of Australia’s regulatory system.

We wish to see a stronger focus given to the rights of the child and their experiences in interacting with digital platforms. It is the responsibility of our government to ensure that children are able to participate in the digital world without being targeted by marketers of alcohol, unhealthy food, gambling and other products potentially harmful to their health. After all, Australia has always been a strong supporter of the United Nations Convention on the Rights of the Child, where the interests of the child are paramount.

PO Box 19 Deakin West ACT 2600 | info@fare.org.au | (02) 6122 8600 3 of 4

Tony MohrExecutive DirectorAlliance for Gambling Reform

Professor Elizabeth HandsleyPresidentAustralian Council on Children and the Media

Professor Rosemary Calder AMDirectorAustralian Health Policy Collaboration

Professor Sanchia Aranda AMChief Executive OfficerCancer Council Australia

Professor Emmanuel KuntscheDirectorCentre for Alcohol Policy Research

Michael ThornChief ExecutiveFoundation for Alcohol Research & Education

Professor Bruce NealDeputy Executive DirectorThe George Institute Australia

Professor Anna PeetersDirectorInstitute for Health Transformation, Deakin University

Professor Stephen J. Simpson AC FAA FRSExecutive DirectorObesity Australia

Professor William BellewProfessorial FellowPrevention Research Collaboration, University of SydneyWHO Collaborating Centre for Physical Activity, Nutri-tion and Obesity

Julia StaffordResearch Fellow, Alcohol Programs TeamPublic Health Advocacy Institute WA

Terry SlevinChief Executive OfficerPublic Health Association of Australia

Dr Mark ZirnsakSenior Social Justice AdvocateUniting Church in Australia, Synod of Victoria and Tasmania

Thank you again for the opportunity to contribute to the Digital Platforms Inquiry Preliminary Report. We hope you will consider the recommendations outlined in our submission. If you would like any further information, please contact Trish Hepworth, Director Policy and Research at the Foundation for Alcohol Research & Education (FARE) at patricia.hepworth@fare.org.au or 02 6122 8600.

Yours sincerely

PO Box 19 Deakin West ACT 2600 | info@fare.org.au | (02) 6122 8600 4 of 4

Endnotes

1. Palmedo P.C., Dorfman L., Garza S., Murphy E. & Freudenberg N. (2017). Countermarketing alcohol and unhealthy food: An effective strategy for preventing noncommunicable diseases? Lessons from tobacco. Annual Review Public Health 38, 119-144. doi: 10.1146/annurev-publhealth-031816-044303.

2. Gunter B. & Furnham A. (2008). Children as consumers: a psychological analysis of the young people’s market. [Taylor & Francis e-Library version]. ISBN 0-203-13019-7.

3. Jernigan D., Noel J., Landon J., Thornton N. & Lobstein T. (2017). Alcohol marketing and youth alcohol consumption: a systematic review of longitudinal studies published since 2008. Addiction 112(Suppl 1):7-20.

4. Anderson P., De Bruijn A., Angus K., Gordon R. & Hastings G. (2009). Impact of alcohol advertising and media exposure on adolescent alcohol use: A systematic review of longitudinal studies. Alcohol and Alcoholism 44(3), 229-243.

5. Smith L. & Foxcroft D. (2009). The effect of alcohol advertising, marketing and portrayal on drinking behaviour in young people: Systematic review of prospective cohort studies. BMC Public Health 9(51).

6. World Health Organization. (2016). Report of the Commission on Ending Childhood Obesity. Geneva: WHO.

7. Cairns G., Angus K. & Hastings G. (2009). The extent, nature and effects of food promotion to children: a review of the evidence to December 2008. Geneva: World Health Organisation.

8. Pitt H., Thomas S., Bestman A., Daube M. & Derevensky J. (2017). Factors that influence children’s gambling attitudes and consumption intentions: lessons for gambling harm prevention research, policies and advocacy strategies. Harm reduction journal 14(11):1-12.

9. Ofcom. (2017). Children and parents: media use and attitudes report. UK: The Office of Communications.

10. World Health Organization. (2016). Tackling food marketing to children in a digital world: trans-disciplinary perspectives. Geneva: WHO Regional Office for Europe.