WEBVTT - Why the ACCC is suing Microsoft

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<v Speaker 1>I'm Ruby Jones and you're listening to seven am. Tech

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<v Speaker 1>giants have invested billions into AI and are looking for

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<v Speaker 1>ways to get a return. So when Microsoft offered its

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<v Speaker 1>customers its new AI function copilot recently, it told them

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<v Speaker 1>they'd need to pay a higher price for their subscription

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<v Speaker 1>or cancel. AI was now part of the deal, whether

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<v Speaker 1>they wanted it or not. Except it wasn't. Now, the

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<v Speaker 1>A Triple C is suing Microsoft, alleging they intentionally misled

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<v Speaker 1>customers to make them believe they had to pay more.

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<v Speaker 1>It's part of a bigger campaign to crack down on

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<v Speaker 1>big tech subscription tactics. So can the regulator take on

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<v Speaker 1>a six trillion dollar company and win today principle of

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<v Speaker 1>good company law. Hannah Marshall on the A Triple C's

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<v Speaker 1>David and Goliath battle to make Microsoft pay and what

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<v Speaker 1>needs to change to protect customers from tricky priss hugs.

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<v Speaker 1>It's Wednesday, October twenty nine. So to begin with, could

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<v Speaker 1>you just lay out for me what it is that

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<v Speaker 1>the A Triple C is alleging that Microsoft has done so.

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<v Speaker 2>The Agriable C says that Microsoft has misled two point

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<v Speaker 2>seven million consumers about its Microsoft Office three sixty five product. So,

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<v Speaker 2>as people probably know, Microsoft three sixty five is that

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<v Speaker 2>suite of office applications that is very widely used. It

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<v Speaker 2>has things like Microsoft Word, Excel Outlook, it has cloud

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<v Speaker 2>storage included. It's available on a subscription basis online, and

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<v Speaker 2>it makes different offerings for personal users, family users, and

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<v Speaker 2>business and enterprise users. And this case is about personal

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<v Speaker 2>and family users. So around October last year, Microsoft started

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<v Speaker 2>messaging these family and individual users saying, your subscription in

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<v Speaker 2>you all is coming up soon. We've added Copilot, which

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<v Speaker 2>is our AI tool, to all of our different applications,

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<v Speaker 2>and so there's going to be a price hike for

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<v Speaker 2>your new subscription. And it was a big price change.

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<v Speaker 2>It was kind of up to forty five percent depending

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<v Speaker 2>on your subscription. As I told people, you've got two choices.

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<v Speaker 2>You can either just stick with that you'll have the

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<v Speaker 2>price applied, or you can cancel your subscription. What it

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<v Speaker 2>didn't tell people, and this is what the Atriplec's case

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<v Speaker 2>is about, is that there was actually a third option.

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<v Speaker 3>We say, we allege in our core proceedings this was

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<v Speaker 3>misleading because actually there was a hidden third option where

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<v Speaker 3>actually a subscriber could continue with their existing services at

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<v Speaker 3>the current price and not face a price increase.

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<v Speaker 2>Even the way they made this offer to people was

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<v Speaker 2>a little bit sneak in the sense that you would

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<v Speaker 2>get towards the end of the cancelation flow and you

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<v Speaker 2>would get this pop up saying, oh, are you sure

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<v Speaker 2>you really want to cancel? You might lose access to

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<v Speaker 2>all your files, which is probably quite concerning to people.

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<v Speaker 2>Would changing your payment plan help?

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<v Speaker 3>This third option was only revealed to a consumer if

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<v Speaker 3>they decided to start and initiated a cancellation process, at

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<v Speaker 3>which point they were then offered the ability to stay

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<v Speaker 3>with their existing plan, not including Copilot, and for no

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<v Speaker 3>increase in price.

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<v Speaker 1>Okay, so it feels dodgy. It feels like a trick.

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<v Speaker 1>But what does the ageable C say about whether or

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<v Speaker 1>not it breaches the law?

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<v Speaker 2>So the ageable C's alleging that this is misleading or

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<v Speaker 2>deceptive conduct and false representations in relation to the supply

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<v Speaker 2>of goods or services. They are the two strict legal

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<v Speaker 2>allegations that it's making. Essentially, it's saying that Microsoft misled

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<v Speaker 2>customers in three different ways. It misled them about co

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<v Speaker 2>Pilot being necessary to keep their subscription, it misled them

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<v Speaker 2>about the higher price being necessary to keep their subscription,

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<v Speaker 2>and it misled customers by telling them they only had

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<v Speaker 2>two options to take the higher price or to cancel.

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<v Speaker 2>And so AHRIBLEC has been really careful to say that

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<v Speaker 2>they don't take issue with businesses changing their product offerings.

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<v Speaker 2>They don't even take issues with businesses changing their pricing

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<v Speaker 2>and increasing prices. What they do take issue with is

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<v Speaker 2>businesses not being transparent, not properly disclosing what's available to

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<v Speaker 2>customers to kind of manipulate the choices that they can make,

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<v Speaker 2>you know. And so in this case, they were automatically

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<v Speaker 2>being pushed onto the higher price unless they made an

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<v Speaker 2>effort to cancel. And then there was this kind of

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<v Speaker 2>third option which people didn't need know was available, that

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<v Speaker 2>they could use to avoid the price increase that keep

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<v Speaker 2>their subscription.

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<v Speaker 1>And can we talk a bit about the idea of

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<v Speaker 1>intentionality or deliberateness here, I mean, to what extent does

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<v Speaker 1>the ariple C allege that what Microsoft was doing here

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<v Speaker 1>was an intentional attempt to mislead customers.

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<v Speaker 2>So the a triable C does make an allegation that

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<v Speaker 2>Microsoft knew what it was doing, and was deliberate about

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<v Speaker 2>what it was doing.

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<v Speaker 3>And deliberate so that there would be a bigger uptake

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<v Speaker 3>of Copilot and also higher revenue arising from the higher

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<v Speaker 3>prices for the Copilot integrated plans.

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<v Speaker 2>Which is actually really interesting in this case because to

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<v Speaker 2>make out those legal allegations I mentioned before misleading or

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<v Speaker 2>deceptive conduct or false representations, they don't actually have to

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<v Speaker 2>prove Microsoft's intent. Whether its communications were misleading is just

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<v Speaker 2>judged by what would an ordinary reason customer have taken

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<v Speaker 2>them to me, So it doesn't involve any consideration of

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<v Speaker 2>what did Microsoft intend. But the A Triple C has

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<v Speaker 2>gone further in this case and said that Microsoft knew

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<v Speaker 2>that people were skeptical about the value of its Copilot

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<v Speaker 2>AI function that it was adding into each of its applications,

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<v Speaker 2>and deliberately framed these communications to make it harder for

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<v Speaker 2>people to opt out of the new product offering. That's

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<v Speaker 2>interesting because probably for a few reasons. The first is

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<v Speaker 2>that it will feed into penalties. The other point is

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<v Speaker 2>that to plead deliberateness like this is it's a really

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<v Speaker 2>serious allegation, and you wouldn't make that kind of a

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<v Speaker 2>pleading unless you had very strong evidence to support it.

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<v Speaker 2>Before this prosecution happened, the arible C will have conducted

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<v Speaker 2>an investigation, and it has really strong investigative powers. It's

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<v Speaker 2>been reported that it received a number of complaints and

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<v Speaker 2>found out more about what was happening on Reddit. Then

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<v Speaker 2>they can go and compel the production of huge volumes

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<v Speaker 2>of documents from Microsoft and speak to all of its

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<v Speaker 2>executives if they want to. And so the fact that

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<v Speaker 2>following a process like that, they've made a pleading of

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<v Speaker 2>deliberateness or intentional conduct, that to me suggests that they

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<v Speaker 2>may well have found some kinds of smoking guns, and

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<v Speaker 2>that the case could well involve a look under the

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<v Speaker 2>hood at what's going on in terms of the decision making,

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<v Speaker 2>the culture attitude of Microsoft towards its customers, which I

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<v Speaker 2>think will be really interesting.

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<v Speaker 1>Coming up. How much might Microsoft be made to pay

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<v Speaker 1>and so what kinds of penalties are on the table

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<v Speaker 1>in a case like this.

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<v Speaker 2>For a case like this, I think it's going to

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<v Speaker 2>be massive. I think it would comfortably be looking at

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<v Speaker 2>kind of an eight figure type penalty. I think it

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<v Speaker 2>could even quite easily go up into the nine figure

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<v Speaker 2>range million plus. And I say that for a few reasons.

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<v Speaker 2>So under the legal regime, the maximum penalty starts from

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<v Speaker 2>fifty million per contravention. But what normally happens in a

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<v Speaker 2>case like this is that the court will find that

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<v Speaker 2>there's multiple contraventions or courses of conduct, so it can

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<v Speaker 2>award multiple times the penalty. We've also seen a trend

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<v Speaker 2>lately for high penalties coming out of the Arible C's prosecutions.

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<v Speaker 2>So in September, Optus paid one hundred million for uncomfortable conduct.

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<v Speaker 2>Now that was in relation to four hundred vulnerable people.

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<v Speaker 2>This case doesn't involve vulnerable people specifically, but it involves

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<v Speaker 2>two point seven million people, which is a lot more

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<v Speaker 2>than four hundred. Also in August, Google paid fifty five

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<v Speaker 2>million dollars in penalties anti competitive agreements with Telstra and Optus.

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<v Speaker 2>The other factor is this point about deliberateness, because as

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<v Speaker 2>I said, it's not relevant to whether Microsoft is liable,

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<v Speaker 2>but it is relevant and it's a factor that the

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<v Speaker 2>courts can apply when they're assessing what number the penalty

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<v Speaker 2>should sit at. And so I think that's where the

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<v Speaker 2>a Triple C will be wanting to use the deliberateness

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<v Speaker 2>to try and push the penalty up into a really

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<v Speaker 2>high range.

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<v Speaker 1>And Hannah, Microsoft is an almost six trillion dollar company.

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<v Speaker 1>What does it say to you that this is where

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<v Speaker 1>the A Triple C is starting to focus its energy

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<v Speaker 1>on At the moment, I think we've seen a really

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<v Speaker 1>interesting pattern of bold and fearless prosecution since Gina Cascottli

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<v Speaker 1>took over as chair.

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<v Speaker 2>The OPTA's case and the Google case are great examples

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<v Speaker 2>of that, where she's taking on really large companies and

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<v Speaker 2>kind of seeking very large, significant penalties. And I think

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<v Speaker 2>this is kind of the next step in that pattern.

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<v Speaker 2>I think it's a big priority for the A Triple

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<v Speaker 2>C to handle the tech and digital giants and to

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<v Speaker 2>make it very clear to them that even if they're

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<v Speaker 2>based overseas, they can't assume that they're above Australia's consumer

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<v Speaker 2>laws and that it's not just a cost of doing

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<v Speaker 2>business to cope with these infringements and just kind of

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<v Speaker 2>swallow up the penalty and keep on going with business

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<v Speaker 2>with no real.

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<v Speaker 1>Change and understanding that, I mean, what does the A

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<v Speaker 1>Triple C say about the leverage about the power that

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<v Speaker 1>it has to bring companies like this to account?

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<v Speaker 2>So I think that's another thread to this case is

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<v Speaker 2>that it could well play into the A Triple C's

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<v Speaker 2>reform agenda. At the moment, the most common forms of

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<v Speaker 2>prosecution are around misleading or deceptive conduct or unconscionable conduct

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<v Speaker 2>in consumer cases, and A Triple C says that there's

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<v Speaker 2>this gap, which it calls unfair trading practices, which it

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<v Speaker 2>currently struggles to prosecute, and what it means when it's

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<v Speaker 2>talking about unfair trading practices is conduct which targets tactics

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<v Speaker 2>to distort consumer choices. They want to be able to

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<v Speaker 2>prosecute that even where it's transparent. So if you think

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<v Speaker 2>about subscription traps, patterns where businesses make online cancelations difficult,

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<v Speaker 2>and automatic upgrades, those are things that the A Triple

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<v Speaker 2>C says it should be able to target even where

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<v Speaker 2>they're fully disclosed, because people's ability to choose what they

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<v Speaker 2>do and don't buy is being manipulated. And so this

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<v Speaker 2>case could put the new law back on the agenda

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<v Speaker 2>because at the moment, the A Triple C can only

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<v Speaker 2>prosecute the misrepresentation by Microsoft about what those options were,

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<v Speaker 2>but with an unfair trading practices law, it could, for example,

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<v Speaker 2>potentially challenge the auto upgrade even if that was made

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<v Speaker 2>fully transparent. You know the fact of having people pushed

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<v Speaker 2>straight to one outcome and then having to make positive

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<v Speaker 2>steps to do anything other than pay more, that of

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<v Speaker 2>itself could be an unfair practice. And so I can

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<v Speaker 2>imagine that the narrative of this case could readily shift

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<v Speaker 2>back towards talking about an unfair trading practices law.

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<v Speaker 1>And does there seem to be much appetite than the

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<v Speaker 1>government to pursue any kind of unfair treading practices law.

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<v Speaker 2>Back in twenty twenty three, I think it was the

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<v Speaker 2>Albanezy government did commit to introducing this kind of a law,

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<v Speaker 2>and then in twenty twenty four it ran a consultation.

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<v Speaker 2>People put in submissions, they were published, It was getting

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<v Speaker 2>quite a lot of interest and coverage. In March this

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<v Speaker 2>year the government came out and said they would extend

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<v Speaker 2>the law to apply to small businesses as well as

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<v Speaker 2>to consumers. Then we had the election, and then since

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<v Speaker 2>then there's been tumbleweeds. And so I can imagine, again,

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<v Speaker 2>thinking about the a Triple Ce's perspective on this, that

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<v Speaker 2>a case like this could be the impetus to put

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<v Speaker 2>it back under the radar, put it back on the

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<v Speaker 2>spotlight and try and get it enacted.

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<v Speaker 1>Okay, And so in the meantime, in the absence of

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<v Speaker 1>any of these reforms, and while this case is still

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<v Speaker 1>going through the courts, where does this leave consumers, Because,

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<v Speaker 1>as you said, it was only once people decided to

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<v Speaker 1>cancel their subscription that they had any idea that they

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<v Speaker 1>were potentially being misled. And we're living in a dime. Obviously,

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<v Speaker 1>most people have many, many subscriptions to many different tech companies,

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<v Speaker 1>So how could you be confident that you are not

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<v Speaker 1>being tricked in this way.

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<v Speaker 2>It's really hard for us as consumers to avoid being duped.

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<v Speaker 2>These systems are designed to thwart us. And you know,

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<v Speaker 2>subscription models have become increasingly popular, and if you think

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<v Speaker 2>about it, they succeed. They make money in two ways.

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<v Speaker 2>The first way is providing something that we really love

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<v Speaker 2>and want to keep using, and then we actively decide

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<v Speaker 2>to keep the subscription. The second way is by hoping

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<v Speaker 2>that we forget to switch it off or we find

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<v Speaker 2>it too hard to switch it off. And you know,

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<v Speaker 2>in an ideal world, businesses would be competing to make

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<v Speaker 2>something that we really love and want to keep, But

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<v Speaker 2>in fact what's happening is that these businesses, particularly digital businesses,

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<v Speaker 2>are competing around how effectively they can manipulate us and

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<v Speaker 2>either make it hard to switch off or have us

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<v Speaker 2>forget to switch it off, and that where they're focusing

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<v Speaker 2>in terms of bolstering their revenue rather than just giving

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<v Speaker 2>us something that's awesome. And that's what the atriple C

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<v Speaker 2>is trying to fight.

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<v Speaker 1>Well, Hannah, thank you so much for beer time.

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<v Speaker 2>Thank you. Ruby.

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<v Speaker 1>Also in the news, Australia's deal with NARU to send

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<v Speaker 1>former detainees to the tiny island has begun. NARU and

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<v Speaker 1>President David Adiyang confirmed to Parliament last week that the

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<v Speaker 1>first person to be settled under the deal had arrived.

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<v Speaker 2>The group of.

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<v Speaker 1>People who will be sent to Naru are known as

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<v Speaker 1>the m z YQ Cohort. There are about three hundred

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<v Speaker 1>and fifty eight former detainees who had been released into

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<v Speaker 1>the Australian community after a High Court ruling in twenty

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<v Speaker 1>twenty three. Many of them had been convicted of crimes

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<v Speaker 1>or had their visas canceled for other reasons. The Australian

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<v Speaker 1>government has a deal in place to paint a room

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<v Speaker 1>more than two point five billion dollars over the next

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<v Speaker 1>thirty years to settle them there and the Greens will

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<v Speaker 1>team up with the Coalition to demand a Senate inquiry

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<v Speaker 1>into optusa's triple zero outages. In a party room meeting yesterday,

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<v Speaker 1>the minor party decided to back an inquiry, which means

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<v Speaker 1>it's expected to pass and could begin as early as

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<v Speaker 1>next week. The Greens would also like to explore the

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<v Speaker 1>role of the regulator when Optus's outages occurred. I'm Ruby Jones.

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<v Speaker 1>This is seven am.

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<v Speaker 2>Thanks for listening.