The outgoing head of Australia's competition regulator wants to see the crackdown on big tech extended, with a focus on outlawing unfair practices.
In his last major public outing as Australian Competition and Consumer Commission chair, Rod Sims said trust in data collection and digital platforms was being undermined by some unscrupulous practices.
"Consumers are facing a growing number of manipulative or 'dark pattern' techniques to exploit or pressure them," he warned a Committee for Economic Development of Australia lunch in Sydney.
"These techniques include false scarcity reminders such as low-stock warnings, false sales countdown timers, targeted advertising utilising consumers' own data to exploit their individual characteristics, pre-selected add-ons and design interfaces that discourage unsubscribing.
Playing 'whack-a-mole' against 'dark patterns'
Rather than playing what he described as "whack-a-mole" to ban each of these practices with specific regulations, Mr Sims instead called for a wide-ranging new provision in the Australian Consumer Law that would outlaw "unfair practices".
"The dark patterns, where you're using information to get people to do things they wouldn't otherwise do, buy goods that they might not have otherwise bought, pay more for those goods, that's where you don't want too many specific rules," he explained after the speech.
Mr Sims said he thinks the Australian public would strongly support such limits.
"According to our surveys, most Australians already object to how much their data is being used," he added.
When asked if businesses might object to such a blanket, non-specific rule, Mr Sims said elements of current consumer laws had raised similar concerns that had largely disappeared after years of experience and clarification through court judgements.
"When the misleading and deceptive conduct provisions were brought in in '74, the business community strenuously put the position that, 'how can you determine what's misleading and what's not, [it's] in the eye of the beholder'," he recalled.
"So there has been a lot of complexity about what is misleading behaviour. I don't think unfair practices will be any different.
"I think courts will form a view about what's unfair and what's not. We've had court cases on unfair contracts, which have defined what's unfair in that context."
Unfair practices could have helped travel customers
Mr Sims said, aside from giving consumers greater protection online, such a provision might have given the regulator more power to ensure airlines, travel agencies and other tourism providers treated their customers fairly when claiming refunds or credits for trips cancelled due to the pandemic.
"You can see how being able to prove unfairness is a lot better than unconscionability," he argued.
However, Mr Sims confirmed that the ACCC is still investigating Qantas, Virgin and other travel providers amid complaints about the handling of travel credits, including increased prices for those trying to book using them.
"We're certainly investigating, there's no doubt," he confirmed.
"Where it will come out, I don't know, because we just need to get the facts, and they're often complicated.
"Whether it could amount to the unconscionable breach, or whether it could just be moral pressure, I suspect either one might solve a problem."
Although, Mr Sims warned that unfair practices protection for consumers is still likely a long way off because it requires agreement from all the states and the Commonwealth.
"There's about to be a regulatory impact statement put out in coming months," he noted.
"It'll be a long process. This is not going to happen this year."
Corporate competition lawyer to take the helm
Mr Sims will not be there to see it through. After more than a decade in charge of the consumer watchdog, he will step down on March 20.
His replacement, Gina Cass-Gottlieb, is a partner at law firm Gilbert and Tobin, specialising in competition and regulatory law.
The firm's website notes that she has "played critical and strategic roles for high-profile clients under ACCC's enforcement and regulatory investigations.
"Gina is also widely recognised as one of Australia's leading advisors specialising in financial services regulatory advice and representing financial institutions and their industry associations before the ACCC, APRA, ASIC and AUSTRAC."
Ms Cass-Gottlieb briefly spoke at the event after Mr Sims to thank him for his work as chair.
