Amazon is offering to halt the online selling and marketing practices in Europe that regulators allege are anti-competitive, hoping to bring an end to a two-year investigation and avoid a massive fine.
But as the tech and eCommerce giant offered a legal commitment in Europe, it does not yet face the same pressure in Australia, where Amazon’s foothold doesn’t meet the market dominance threshold and rules targeting the practice are years away.
Australian regulators are still concerned, however, because of the rapid growth of Amazon’s retail business in Australia and are “closely following” the European case as new rules for digital platforms loom.
Amazon Australia declined to say if the European offer – which includes a legal commitment to not use other sellers’ data for its own competitive retail business – would be applied locally.
But the local arm insisted it does not advantage its own products over Australian third-party sellers it competes with when generating $1.3 billion in Australian sales annually.
The company has refused to let Australian regulators examine its algorithm to verify the claim.
The Australian Competition and Consumer Commission (ACCC) sought information from Amazon Australia on the data inputs of Amazon’s algorithms for the regulator’s ongoing Digital Platform Services inquiry earlier this year.
The information was not provided. A spokesperson for Amazon Australia declined to say why it wasn’t.
It means the ACCC currently “does not have information about how Amazon’s algorithms produce search results”.
Potential self-preferencing is one area of how Amazon “systematically” relies on non-public data it collects from the thousands of sellers on its platform, according to the European Commission, which is pursuing a landmark antitrust case against the tech giant.
The Commission began investigating in 2019 to assess whether the tech giant’s use of non-public data from independent retailers selling in its marketplace breached EU competition rules.
A year later, the regulator had formed a preliminary view that Amazon is “systematically relying on non-public business data of independent sellers” on its platform to benefit its own retail business.
“The Commission’s preliminary findings show that very large quantities of non-public seller data are available to employees of Amazon’s retail business and flow directly into the automated systems of that business, which aggregate these data and use them to calibrate Amazon’s retail offers and strategic business decisions to the detriment of the other marketplace sellers,” the European Commission said in 2020.
“For example, it allows Amazon to focus its offers on the best-selling products across product categories and to adjust its offers in view of non-public data of competing sellers.”
This, the European Commission alleged, is distorting competition in online retail markets in Europe, where Amazon holds a much larger market share than in Australia.
The Commission initiated antitrust proceedings against Amazon and launched a second investigation into how it promotes buying options with a ‘Buy Box’ and its Prime subscription program.
The Commission preliminarily found both Buy Box and Prime unduly favour Amazon’s own retail business, as well as marketplace sellers that use its logistics and delivery services.
Faced with a potential multi-billion dollar fine, Amazon this month offered commitments to address the European regulator’s competition concerns.
These include a legal commitment to refrain from using non-public data from sellers for its retail business that competes with those sellers.
Amazon also offered to apply equal treatment to all sellers when ranking their offers for inclusion in the Buy Box; and to not discriminate against other sellers from Prime and allow them to choose their own logistics provider.
The offered commitments would last five years and cover all Amazon’s current and future marketplaces in the European Economic Area, with the exception of Italy, which has already imposed its own remedies on Amazon.
A monitoring trustee would report regularly to the Commission on the implementation of the commitments.
Rivals and the general public now have a chance to comment on Amazon’s offer, but the European Commission will already see this as another win against Big Tech’s potential anti-competitive behaviour.
Asked if the commitments would apply in Australia, an Amazon spokesperson said, “The Amazon Australia Store does not advantage our own products or offers in search results or in the ‘Featured Offer’ over those of third-party sellers.
“The offers we feature are the ones we think customers will prefer, regardless of whether it is from Amazon or one of our seller partners, based on the same criteria, such as the product’s price, and delivery speed.”
The ACCC said it is closely monitoring the developments in Europe.
“The ACCC is aware that the European Commission is seeking feedback on commitments offered by Amazon concerning marketplace seller data and access to Buy Box and Prime, and is closely following the matter as it develops,” an ACCC spokesperson told InnovationAus.com.
The regulator declined to comment further on Amazon as an individual company but confirmed for any company operating in Australia with market power, the ACCC would be concerned by “any preferential treatment provided by a marketplace to the products sold by its own business unit at the expense of third-party sellers”.
In Australia, Amazon still trails online marketplace pioneer eBay, currently the largest with annual sales of over $5.3 billion in 2020/21. Amazon is second with $1.3 billion but is growing quickly, nearly doubling its annual sales in the last two years as online shopping boomed.
Australian consumers are estimated to have spent more than $52 billion online over 2020/21, an increase of almost 31 per cent compared to the previous year.
Earlier this year the ACCC conducted its own examination of online marketplaces favouring its own products in the ranking or display to consumers through algorithms, policies or other decision making.
The ACCC found in Australia the practices “did not appear to have resulted in any significant and extensive competitive detriments”, partly because of online marketplaces’ low share of total retail sales.
But the watchdog said it will continue to monitor the issue, listing online marketplaces and the manipulation of consumer behaviour among its latest priorities.
The ACCC may yet also apply rules that would prohibit self-preferencing by digital platforms more generally.
“The ACCC is currently considering whether regulatory reform is required to address the competition and consumer concerns associated more broadly with digital platform services. This includes the risk of anti-competitive conduct such as self-preferencing by large digital platforms,” the spokesperson said.
“We have received around 90 submissions from around 100 stakeholders in response to a February 2022 discussion paper and have recently held a series of stakeholder roundtables. We are due to provide our next interim report to the Treasurer by the end of September 2022.”
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