APAC Monthly TMC Update  – Winter 2021

Asia-Pacific

Australia

Australia proceeding with News Media Bargaining Code

The Australian Competition and Consumer Commission (ACCC) released a draft code designed to establish a mandatory framework for negotiating and agreeing on payments to news content creators by digital platforms that display and link to this news content in July 2020. The draft Code has since garnered strong reactions, receiving general opposition from the applicable digital platforms (Facebook and Google) and support from content creators. Following the initial public consultation, the ACCC confirmed in December 2020 that it intends to proceed with the Code.

The Code states that news media organisations publishing core news online (subject to certain other criteria) can engage in negotiations with digital platforms (currently only Google and Facebook have been identified) for payment for news content. There are fixed processes and timelines for this process, which includes good faith negotiations and information request stages followed by mandatory arbitration by a panel formed from a list of registered arbitrators. The outcome of the binding arbitration process will determine the price for the content for one year. Digital platforms are also required to provide notice of algorithms affecting news content. The draft Code may be further amended based on feedback from numerous parties, which could also affect the final requirements on algorithm change notice conditions as well as the final criteria or guidance to arbitrators on how final offer content price is determined.

The official press release from the Treasurer and the Minister for Communications can be found here.

China

China’s Market Regulator issues Anti-monopoly Guide for the Platform Economy Sector

On 7 February 2021, the State Administration for Market Regulation (SAMR) issued the finalised Anti-monopoly Guideline for the Platform Economy Sector. This Guideline follows the draft Guideline issued on 10 November 2020 and is the first piece of anti-monopoly related legislation that specifically targets the TMC sector.

Among other directives, the Guideline provides detailed guidance on preventing and restraining monopolistic conduct in the platform economies sphere. The Guideline also sets out several typical violation behaviours under the anti-monopoly agreements chapter, such as when operators collect or exchange sensitive business information (e.g. prices or sales volume) to manipulate the market, boycott transactions, fix prices or limit new products and services; and when operators fix resale prices or minimum resale prices through manipulating data and algorithms. The Guidelines also target the use of big data algorithms to provide differentiated prices and conditions to consumers and traders, which is currently the typical conduct of tech giants in the Chinese market. In addition, in the concentration of operators chapter, the Guideline indicates that the concentration of variable interest entity (VIE) operators also falls within the scope of a merger control review. This is the first official confirmation that the VIE structure is subject to merger control review. 

When the draft Guideline was issued in November 2020, the industry considered it a reaction to the boom in the online platform economy and launched a huge push back during the opinion-solicitation period. Compared to the draft, the final version contains a balanced approach such as listing potential justifications for some seemingly anti-competitive behaviour. Platform operators in China should pay attention to this Guideline in their compliance work.

Please click here for more details of this Guideline.

Singapore

IMDA opens second public consultation of Draft Code of Practice for Competition in the Provision of Telecommunication and Media Services

On 5 January 2021, the Infocomm Media and Development Authority (IMDA) issued the second public consultation for its Draft Code of Practice for Competition in the Provision of Telecommunication and Media Services. This follows a first public consultation in February 2019, during which industry players commented on harmonisation of the Code of Practice for Competition in the Provision of Telecommunication Services 2012 (TCC) and the Code of Practice for Market Conduct in the Provision of Media Services (MMCC). The first public consultation on harmonisation of the TCC and MMCC focused on keeping pace with market and technological developments, and sought views on a broad range of topics, including market overview, anti-competitive conduct, consumer protection, mergers and acquisitions, public interest obligations, and so on.

The second public consultation will largely focus on the same key issues, but within the context of a draft Code that covers both market conduct for telecommunications and media services. The consultation paper highlights the accelerated digital transformation in e-commerce, Over-the-Top content distribution, e-payment applications and the use of the Internet and data driven business models as potentially intensifying competition, while network effects, scale and scope economies nevertheless lead to concentrated market structures and potentially drive anti-competitive behaviour. The draft Code reviews application of classic competition principles such as definition of dominant entities and abuse of dominant positions within the context of telecommunications and media services and consolidating specific consumer protection rules, governing service providers restrictions on mid-contract changes, enhancing billing information transparency, and others. The consultation period opened on 5 January 2021, and closed on 2 March 2021.

The official IMDA press release can be found here.

ASEAN Data Management Framework and Model Contract Clauses for Cross Border Data Flows

On 22 January 2021, an ASEAN Data Management Framework (DMF) and Model Contractual Clauses for Cross Border Data Flows (MCCs) were approved during the ASEAN Digital Ministers’ Meeting, during which the ASEAN Digital Masterplan 2025 was also issued. The DMF and MCCs can be used by ASEAN businesses in their data-related business operations.

The DMF is a guide for businesses (especially SMEs) to put a data management system in place, and includes good data management practices, data governance structures and safeguards. The DMF provides high level yet practical guidance, running through the following six foundational components: governance and oversight, policies and procedural documents, data inventory, impact and risk assessment, controls, and monitoring and continuous improvement. For businesses without or with basic data management structures, the guidance can be used as a holistic framework to be used as a starting point to build a data management framework.

The MCCs are template contractual clauses that can be included in contracts between cross border data transferors and recipients, similar to EU model clauses issued by the European Commission for cross border data transfers in compliance with the GDPR. The MCCs consist of two modules: one for controller-to-processor transfers, and another for controller-to-controller transfers. The MCCs are a voluntary standard. Parties are free to negotiate commercial terms provided they do not contradict the MCCs. Parties may also use other valid data transfer mechanisms recognised within ASEAN, and are not limited to use of the MCCs. The Personal Data Protection Commission of Singapore (PDPC) has stated that it encourages use of the ASEAN MCCs to fulfil the transfer limitation obligation of the Singapore Personal Data Protection Act (PDPA). The ASEAN MCCs can be used under the PDPA for countries with data protection regimes based on the APEC Privacy Framework or OECD Privacy Guidelines. When Singapore parties use the MCCs, they may wish to add more clauses that are appropriate for their commercial or business arrangements (as long as they do not contradict the template clauses). Parties may also wish to clarify that data subject includes persons living or deceased, and specify a specific time frame for notifying each other of data breaches, in view of the timeframes set out in the recently amended PDPA.

The official PDPC press release can be found here.

The MCCs can be found here.

The DMF can be found here.

Singapore’s PDPA amendments have come into effect

On 29 January 2021, the Personal Data Protection Commission (PDPC) announced that the Personal Data Protection Act (PDPA) amendments issued in 2020 would take effect on 1 February 2021. Relevant amendments to regulations relating to the PDPA were also published in the Singapore Gazette and simultaneously took effect on 1 February 2021 as well.

Refer to our previous Law-Now updates on the PDPA amendments here and here.

The official PDPC press release can be found here.