Annotated Bibliography

Invited policy paper: Competing in the online marketplace: Contemporary issues for SMEs and their regulators

Michael T. Schaper*

Australian Competition & Consumer Commission, University of Western Australia1

(Received 2 February 2015; accepted 9 February 2015)

How to compete successfully in an online environment raises numerous issues for both small and medium enterprises2 (SMEs) and regulatory agencies. This paper considers these matters at two different levels: the macro-scale (how markets are structured and operate; access to electronic infrastructure; resale price maintenance activities, and market mergers), and the micro (how individual firms operate and interact with their customers, competitors and suppliers). Each of these issues is examined, with a special focus on regulatory activity in the Australian competition and consumer law arena to deal with such matters. Some observations are also made on certain unexpected by-products of the electronic commerce: the growing incidence of scams perpetrated against SMEs; the likely continuing rise of the informal sector; and potential changes to conventional franchising models. Finally, the way in which regulatory agencies respond to all these matters is discussed.

Keywords: competition law; Australia; ACCC; Antitrust

Introduction

The online environment, in its many shapes and forms, is now an essential part of the operating context for all businesses. Since its first tentative forays in the mid 1990s, online technology and the online marketplace have shown steady and consistent growth, diffusing into all sectors of the business community. For example, by 2013 93 per cent of all businesses in Australia had internet access; almost half (some 47%) had a web presence, and more than a quarter (26%) already had a social media presence (ABS, 2014).

Accurate figures on the overall size of the online marketplace are harder to come by. However, some researchers suggest that consumers were already spending more than $13 billion in online shopping in 2011, accounting for 5.5 per cent of all retail sales in Australia (PwC/Frost & Sulli- van, 2012). More recently the Australian Bureau of Statistics (2015) has conservatively calculated that it accounts for 3 per cent of retail trade (approx. $740 million dollars); but then points out that its data collection methods exclude the activities of the self-employed business operator, as well as the sales of wholesalers and manufacturers.

Small businesses have adopted online tools and opportunities in very different ways. This is not surprising, since the electronic and information-based needs and preferences of each SME are highly individualistic, as are the attitudes of the business people who ultimately make the

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*Email: [email protected]

Small Enterprise Research, 2015 Vol. 22, No. 1, 69–78, http://dx.doi.org/10.1080/13215906.2015.1017075

decisions behind such behaviour. For some small firms, dealing with the online marketplace may be something as elementary as adopting an email account for basic communication needs. Others may use a website as a major mechanism for customer orders and delivery; whilst a different cohort may have embraced social media and review platforms as a major means of marketing and promoting their products to a global audience.

The size and nature of the market in which a business trades has also been fundamentally transformed through online technology. For some small business owners the internet is a disrup- tive, threatening technological advance. It exposes them to competitors from every corner of the globe, strips away the unique selling points that geography has traditionally provided, and requires time and effort simply to keep up with. Yet there are just as many eager new entrepre- neurs who have used the opening up of the marketplace to give birth to a whole new generation of businesses providing online services. All of this, in turn, raises issues that both marketplace regulators and policy makers (the parties who set and police the frameworks under which elec- tronic trade takes place) have to consider and deal with.

In Australia, the Competition & Consumer Act 2010 (previously known as the Trade Prac- tices Act 1974), is the primary federal statute that defines the regulatory and legal environment under which businesses and consumers engage in commercial transactions. This legislation covers a myriad of different issues, including cartels, anti-competitive agreements misuse of market power by a firm, mergers and acquisitions, pricing, advertising and selling practices, consumer rights and product safety. There are also provisions for regulating some national infra- structure, the monitoring of markets where there is limited competition, and mandatory industry codes in some sectors, such as franchising. The Act is administered and enforced by the inde- pendent Australian Competition and Consumer Commission (ACCC), which also has responsi- bility for managing the national Scamwatch alert centre. There are several small business- specific provisions built into the Act, and the ACCC maintains an active role working with and educating SMEs about their rights and responsibilities. How competition laws affect the SME sector, and how the agency interacts with small firms, has previously been discussed in some detail in earlier editions of Small Enterprise Research (see Schaper, 2010; Storey, 2010).

In recent years the ACCC has designated online issues as a priority area, a decision driven by the recognition that this is an increasingly important part of the economy, and one which generates significant questions from both consumers and business. For example, in 2014 almost a quarter of all contacts, complaints and enquiries received by the ACCC from small businesses were related to online issues.

Online issues and their effect on SMEs need to be considered at two different levels. The first of these is at the macro-level. This concerns how markets are structured and operate, and the out- comes this is likely to produce. The second is at the micro-level, which deals with how individual firms operate and interact with their customers, competitors and suppliers. Each of these issues is examined in the next two sections of this paper, followed by some observations on some unex- pected by-products of the new electronic environment - In particular the growing incidence of scams perpetrated against SMEs, and how the nature and type of SMEs and franchisees emerging (or disappearing) in the business population may also be changing. Finally, the way in which the national competition regulator has responded to these issues is discussed.

Market structures

Information and communications technologies (ICT), particularly online and mobile systems, are now as important to the daily operation of businesses as infrastructure like roads, energy, electri- city and water. Almost all ICT assets and services in Australia are privately owned and operated, predominantly by large entrepreneurial corporations which did not exist 10 or 20 years ago.

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Whilst the operators of private infrastructure have an ongoing interest in generating and attracting a steady supply of new business customers to their services, it is only one consideration amongst many when it comes to their profit-maximising motives. SMEs may not always figure as the most important constituency for such large firms. It is therefore important to ensure that the providers of such necessary electronic infrastructure allow the marketplace to operate openly and fairly. There is an ongoing need for policy makers, legislators and competition regulators to be alert to arrange- ments and conduct which may limit the ability of small business to effectively compete online, or which stifles or blocks emerging competition between online traders.

A case in point is that of the modern search engine. Individuals do not navigate the web on a page-by-page basis; they rely on search engines to help them find what they need, to the point where some engines have become verbs in their own right (i.e. ‘just Google me’). Modern online services can often act as potential ‘information bottlenecks’ or gateways for both consu- mers and businesses. If a firm and product can’t be found easily on a search engine, then its chances of drawing in customers become significantly more difficult. Further, if a search engine allows some firms to pay for preferential listing or search result manipulation, then smaller firms can often find themselves bumped to an unfindable ranking.

The issue of search engine rankings and displays in Australia was the subject of several years of litigation between the ACCC and Google, which culminated in 2013 in the High Court of Aus- tralia. The regulator had alleged that Google had earlier engaged in misleading or deceptive conduct by publishing competitor advertisements on its results page, leading many viewers to be mistakenly taken to a competing firm’s website. The action was ultimately unsuccessful, with the High Court ruling that Google was merely communicating claims made by the advertiser (ACCC, 2013a, 2011). Nevertheless, it did lead to some changes in the way in which search results were subsequently displayed, and arguably has led to greater clarity in search results than was previously the case.

In the European Union, there has long been a debate about the power that Google’s ubiquitous search engine has on its other commercial activities. Rival search firms, as well as new startups, often complain that Google gives preferential treatment to its own businesses, skewing search results in such a way that consumers are often unknowingly guided to a Google-owned product in preference to their competitors. While every firm has a right to promote itself, the large market share which Google commands in search means that competition arguably faces a chilling effect. The European Parliament is currently considering a proposal to force the breakup or divestiture of Google in response to these concerns (Fairless, 2014).

A more subtle form of market distortion can be the practice of so-called ‘resale price main- tenance’, in which a supplier forces a retailer to charge a particular price for a product. In other words, the wholesaler attempts to fix or set the price, rather than letting entrepreneurial vendors respond to open market dynamics by adjusting the price to the one they best think meets their customer demands. In recent years several wholesalers have attempted to engage in resale price maintenance, so as to prevent price-competitive online traders undercutting the exist- ing arrangements they already have in place with traditional bricks and mortar stores. For example, in 2011 the ACCC dealt with a supplier of aquarium products who threatened to cut off a small online retailer advertising cheaper prices. In 2012, similar actions took place in the beauty, baby products and handbag retailing sectors.

Mergers and acquisitions have the potential to change the future structure of the marketplace and the online sector can be an important consideration in some merger decisions for the regulator. Whilst it is a perfectly legitimate business practice to grow an enterprise by acquisition, Australian merger law enables the ACCC to challenge an acquisition if it believes that it would be likely to lead to a substantial lessening of competition in any market in Australia.

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Sometimes the evolving and dynamic nature of the online marketplace can provide support for allowing a merger to be cleared that would otherwise raise significant competition concerns. For example, in October 2014 the ACCC decided not to object to a move by the global online travel agency, Expedia, to purchase Wotif, one of its closest and largest competitors in Australia. Both parties are important channels through which large and small accommodation providers gen- erate bookings. Competition regulators typically take a dim view when two of the three largest firms in a particular market try to merge, based on a well-founded fear that the remaining two competitors would settle into a softened state of competition resulting in reduced innovation and higher prices. In this case, however, the ACCC found that there had already been considerable change in the competitive dynamics of the online accommodation market, with numerous new firms entering the market and the rise of so-called ‘meta-search sites’ (such as TripAdvisor) which aggregate numerous offers into one point for consumers. The ACCC assessed that disrup- tive developments like these were likely to continue in the future and this meant that the merged firm was likely to be constrained by other competitors (ACCC, 2014c).

Individual firm practices

Small business owners, managers and employees also need to be aware of their own practices in online trading. Many of them have become adept at using online tools, but their knowledge of how the law operates in the online environment often lags well behind. Each year the ACCC receives numerous enquiries and complaints about the marketing and sales practices of Australian SMEs, from both the buying public and from competitor firms. Concerns about potential mislead- ing and deceptive conduct in advertising and promotions are the single biggest issue, generating over 2000 queries from small businesses themselves during the 2014 calendar year. Consumer law issues (1400) are the next biggest group, followed by product safety matters (1100) (ACCC, 2015). In each of these areas, a frequent theme is understanding (or, rather, a misunder- standing of) how the national competition and consumer law regime applies in cyberspace.

The Competition & Consumer Act bans businesses from engaging in any form of behaviour, claims, statements or communications which mislead or deceive. Critically, it is the overall impression which a business creates in the mind of a consumer that is most important. This can take place in any of a number of different mediums – face-to-face, in print, over the phone, in a public presentation, or online. For example, a builder who advertises new houses with photographs of pools and cabanas in all their marketing material, but who only later reveals in the fine print that these items aren’t part of a house-and-land sales package, is likely to have broken the law. However, in the online context it is sometimes easy to breach this law. Some business operators are unaware that these prohibitions extend into the electronic environ- ment, and instead believe that online claims are exempt from the rules. Others conflate the expression of private views with commercial practices, giving rise to one of the more substantial issues for many SMEs trading online: fake online reviews and testimonials.

Consumers are increasingly relying on peer comments and feedback when they make their purchasing decisions online. A recent report commissioned by marketing firm Sensis (2014) suggested that almost 70 per cent of consumers used review platforms and/or blogs to help deter- mine their purchasing decisions. However, the integrity of the information they obtain in this way can sometimes be compromised by deceptive business practices.

Fake, misleading or deceptive reviews and testimonials can be found whenever the full relationship between a reviewer and a business is undisclosed to the buying public. In some cases, firms provide financial incentives for reviewers to provide positive comments; in others they may pay to ensure that negative reviews are omitted. In some cases, competitors post false criticisms of other businesses, or encourage employees, friends and family to post ‘false

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positives’. Whatever form it takes, the practice is illegal: it produces misleading and deceptive impressions for consumers, and so runs afoul of the Competition & Consumer Act. It can also seriously wound honest firms who do not attempt to game the system (ACCC, 2013b).

Pricing is another consumer-law-related matter that businesses often grapple with. The Act requires businesses to disclose all obligatory minimum costs and fees to a prospective customer before they purchase, as well as avoiding any other potential risks of deceptive and misleading activity. This gives rise to numerous questions in the online marketplace. For example, how should disclosures on websites be structured to ensure that customers have full knowledge of all prices and charges? Further, is it permissible to charge different prices to online and face- to-face customers? Also, why are prices sometimes different overseas?

A third area that many online traders grapple with is that of product safety. Australia’s national regime of product safety regulations are designed to ensure that all businesses who supply or sell goods comply with minimum safety standards. A well-known example is that of children’s cots, which impose basic minimum standards to prevent children suffocating, falling or hurting them- selves whilst in such beds. Many small-scale traders have emerged selling these items, but often import such goods online from other countries which have different (usually lower) safety requirements, thus falling foul of the law. Verification of goods imported online is difficult for small firms, yet they are still responsible for the products they offer to the Australian marketplace. Not surprisingly, then, each year sees the ACCC undertake a number of formal enforcement actions against small traders in this area (ACCC, 2014a).

Scams and fraud

Online trading also exposes small firms to the unexpected risk of increased vulnerability to business scams and fraudulent activity. Businesses often receive unsolicited emails, seemingly from a bank or trusted third party, asking them to send on valuable personal or organisation infor- mation, such as account details. Sometimes they will receive invoices, allegedly claiming payment for goods or services that were never ordered in the first place. Bills may come in that appear to be connected to one’s own domain name registration, but in reality are not. Or they may be offered the opportunity to place an advertisement in a magazine or directory that doesn’t actually exist. More recently, firms have also been victims of ‘intercept’ attacks where invoices sent electronically to customers are hijacked and deposit details subtly altered, so that the money is never received.

The national public reporting framework for most of these is the ACCC’s Scamwatch website. Each year more than 90,000 reports are received by the agency, and whilst most of these are lodged by members of the general public, small businesses are certainly not immune. In 2013, for example, more than 3600 false billing scams (in which a firm is tricked into paying for unwanted or unordered advertising, stationery, subscriptions or other services) were reported, with losses of over $720,000 (ACCC, 2014b).

Whilst only a small body of research has so far been undertaken into this phenomenon, the limited evidence which does exist suggests that SMEs may, in fact, be far more vulnerable to such fraudulent behaviour than the general public. Not only does the incidence of scam activity appear to be higher amongst small-scale enterprises; but their owners and managers are also much more reluctant to report it to either the police or bodies such as Scamwatch, which means that the true extent of the problem is poorly known (House of Representatives Standing Committee on Communications, 2010; Schaper & Weber, 2012).

Electronic communication and trading has enabled scams to grow into a much bigger problem for SMEs than was previously the case. Online scam approaches can be conducted on a very large scale at very low unit cost to the perpetrator. Email addresses are easily found and can be used to

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approach many more victims, and it is easy to construct a fake website to back up the fraudster’s apparent story. Scammers can now base themselves outside of Australia, making their location and prosecution very difficult. Sadly, once money has been innocently dispensed by a victim business to a scammer, it is often quickly routed on further and the chances of recovering it are usually lost.

Changing the nature of small business?

It is often fashionable to rhetorically proclaim that something will ‘fundamentally change the way we do business’. Such statements are often over-hyped assertions, because many of the basic, enduring principles of doing business remain the same. However, it’s clear that electronic trade has already changed major aspects of conventional business operations. Communication with customers and other members of the supply chain are quicker, cheaper and easier than ever before; the range of advertising and marketing mechanisms has expanded; and geographical limit- ations have been sharply reduced. There are also some other trends now becoming evident which might also lead to significant changes in the nature of Australia’s small business sector – which in turn will throw up challenges to our regulatory and legislative systems.

The emergence of the so-called ‘sharing economy’ is one. Recent years have seen a prolifer- ation of electronic tools and platforms which allow individuals to share-out work and service delivery. Individuals can now earn income by letting others drive their car (see, for example, RelayRides), by acting as an impromptu taxi service (Uber), renting out a spare room in their house (Airbnb), informally buying and selling goods (eBay), or undertaking small tasks for others (e.g. Task Rabbit and Freelancer).

As Botsman and Rogers (2010) have explained, in many cases people can now construct a ‘living income’ for themselves by using a variety of these online opportunities. They are largely entrepreneurial and commercial in their orientation (one bids for work and has to carefully match price to demand, service delivery and competitor bids), but do not fit into conventional regulations as business entities. Much of the work performed is small-scale, many sales have a very small dollar value, and it takes place at the individual-to-individual level. Yet it is, in many ways, the essence of small-scale entrepreneurship: individuals identifying opportunities and creating value and generating wealth by responding to those unmet customer needs.

Such arrangements are unlikely to ever completely replace conventional large-scale businesses, but the numbers of people engaging in these activities are growing, and making it increasingly easier for micro-entrepreneurs to establish themselves and flourish. Micro-businesses (which include the self-employed) in Australia already represent about 84 per cent of all trading enterprises, a figure which often surprises many casual observers of the sector. However, if the trend of the sharing economy continues to grow, then it will also see more sole traders flourish, and the micro-firm sector grow in overall size and market share.

The other potentially significant sector in which online trading may be transformative is fran- chising. Traditionally, most franchise models – in which the owner of a product or service licenses other parties to sell these items on its behalf – have been heavily reliant on exclusive geographical territories. Franchisees are allocated particular areas in which they, and no other vendor in the same franchise system, can operate, thus guaranteeing them a certain level of sales and income. These prohibitions on intra-franchise competition have served to ensure that most fran- chisees are viable, create a relatively straight-forward distribution channel for the franchisor’s pro- ducts, and ensure that there is usually a store located close to most customers. However, online communication and distribution threatens to upend this arrangement. Franchisors now have the capacity to liaise directly with their customers and to sell and service them. For many products, it is now perfectly normal for consumers to go online, purchase the item in question directly from

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the original supplier, and have it delivered directly to their own door, bypassing the so-called ‘middleman’ of retail.

So what happens when the franchisor no longer needs to rely on a network of franchisees, but can instead themselves sell directly to most (if not all) customers? One possibility is that the number of franchising arrangements in place may begin to decline. This would be a significant turnaround to the pre-existing pattern of solid growth that the Australian franchising sector has experienced over the last 20 years: in 1993–94 there were some 555 franchise systems and 26,000 franchisees, which had grown to 1200 and 79,000, respectively by 2014 (ABS, 1994; Frazer, Weaven, & Grace, 2014). Not all industries will be equally affected: where direct face- to-face contact is essential (such as in the provision of professional services or fast food) franchis- ing is unlikely to be seriously affected. Yet product-based franchise systems will certainly face some existential challenges. Whilst sectoral statistics on franchising on Australia are often diffi- cult to come by, it will be interesting to see if any such data in future years does indeed show a decline in product-based franchises vis-à-vis service-sector franchises.

Regulatory responses

What is the most appropriate role for regulators in the online marketplace? As the preceding dis- cussion illustrates, electronic business raises a number of potential issues for the bodies charged with policing the framework of competition and trading laws. It also has implications for the way in which regulatory bodies deal with the SME sector.

A core function for any regulator is the enforcement of existing law, and that is unlikely to change. As has been pointed out above, there are no new, specific rules for online trading and communications in the electronic marketplace. The existing provisions of the Competition & Consumer Act apply equally in cyberspace, just as they do in regards to such other functions as taxation and corporate regulation. However, because there are often some mistaken assump- tions that the rules do not apply, there is a strong need for the competition regulator to continue its focus on educating small businesses about both their business rights and responsibilities.

In some areas of competition law enforcement, however, the online environment creates new challenges. Defining what a market is becomes more problematic in cyberspace than in convention- al business, as geographical boundaries become less relevant, and the range of potential customers and competitors expands substantially. For example, mergers and acquisitions are assessed against a criteria of ‘substantial lessening of competition’ in a market. How does one do this online? Reg- ulators accordingly have to develop more sophisticated understandings of how markets work online, and which tools of economic and legal analysis are best suited to their determination.

On the other hand, other tasks become potentially much easier. Communicating with Australia’s 2.1 million SMEs has often be difficult for government, but the widespread adoption of email, social media, apps and the like means that regulatory bodies such as the ACCC now have far greater capacity to quickly and cost-effectively reach out to more individual firms than ever before. That said, government agencies have traditionally been much slower to adopt new communication methods than the private sector. In part, this is because it costs a considerable investment in time and staff resources (which are always limited in a public agency) in new tech- nologies, and will often only be adopted once it is clear that they are here to stay for the long run. Whilst email, for example, is extensively used in business-to-government communication, social media has only been adopted to a limited extent by regulators, even though it is becoming an increasingly favoured tool for both consumers and businesses. Furthermore, apps are presently only used to a limited degree.

Changing the law to deal specifically with online matters is more complex than many members of the public might realise. The development of new regulation is usually subject to

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specific requirements regarding public consultation and input, detailed consideration by the Min- ister and Cabinet, drafting of the relevant proposed law, and ultimate debate and approval of Par- liament, all of which takes considerable time and may result in substantial amendment to the original proposal. As a case in point, new provisions in the national Franchising Code of Conduct regulations specifically require franchisors to disclose to would-be franchisees what arrangements will apply for online sales; however, such changes have only come into effect after a review process which has spread over some years.

For those business groups who want to advocate changing the law, it is important to bear in mind that there is a difference between the law-enforcement and policy-making functions of gov- ernment. Bodies such as the ACCC, and other major economic regulators such as the Australian Taxation Office (ATO) and the Australian Securities and Investments Commission (ASIC), are essentially charged with policing and enforcing the law as it is. They cannot usually unilaterally change the rules of the game. It is a separate wing of the state (typically, the federal Parliament, the Minister and the relevant federal department) which has responsibility for devising, testing and legislating new policies and rules. Many small business groups do not have extensive experience in lobbying for change; to overcome this, they need to understand where their reform calls must be focussed.

Conclusion

One thing is clear: the online marketplace is here to stay. There are challenges ahead in ensuring that it remains open and freely accessible to all, and that businesses know how to operate legally within its boundaries.

What should that marketplace ultimately look like? This is a debatable issue that all members of the community will be affected by. The issue of market structures has been briefly touched upon earlier in this paper, and views on this are mixed. For some Australians, there is a preference to have a fully deregulated environment, which arguably should be highly conducive to inno- vation and the evolution of new business models and opportunities. Others would suggest that perhaps we need specific laws to deal with cyberspace, especially for issues relating to electronic infrastructure and bottlenecks, in order to ensure equality of opportunity for both big and small firms. This would assume a more active and interventionist role for government in managing online trading relationships.

The perspectives from different parts of SEAANZ’s ‘four pillars’ each have the capacity to contribute to this debate. Industry associations and small business operators can provide valuable input into the current problems they face, and there is already a well-established body of research in economics, law and competition policy that evaluates the relative merits of different possible legislative and regulatory responses.

How can we maximise the capacity of SMEs to compete effectively in the online environ- ment? Not all businesses respond equally to the opportunities provided by the new environment. Whilst some have flourished, many others regard it as a threat. This is an area in which small business researchers can help improve our level of knowledge, which in turn will assist business organisations, regulatory agencies and policymakers. Some particular issues of worthwhile inves- tigation include the barriers and triggers to trading online amongst SMEs; the current level of knowledge amongst small firm operators about online trading and competition law; assessments of the level of illegal or unfair trading practices already occurring online; and the competitive threats and challenges SMEs face online.

These are issues for the whole small business sector to consider, and there is a role here for all parties with an interest in the small business sector – businesses themselves, their industry repre- sentatives, regulators and the academics who study them – to participate. No doubt there are many

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different possible answers that might emerge, and the pages of Small Enterprise Research are as good a place as any to begin that debate.

Disclosure statement

The views expressed in this paper are those of the author only and do not necessarily reflect those of the Australian Competition & Consumer Commission (ACCC) itself.

Notes 1. Deputy Chairman, Australian Competition & Consumer Commission, and Senior Honorary Research

Fellow, University of Western Australia 2. The term ‘SMEs’ refers to firms with fewer than 200 employees.

Notes on contributor Dr Michael Schaper is currently the full-time Deputy Chairman of Australia’s national competition agency, the Australian Competition & Consumer Commission, with special responsibility for small business-related issues. A past president of SEAANZ and former ACT Small Business Commissioner, he has extensive prac- tical experience in SME policy, research and teaching, business counselling and mentoring start-ups. The author of numerous books and refereed articles on the sector, in 2009 he was named ‘National Small Business Champion’ by the Council of Small Business Organisations of Australia. Michael.schaper@ accc.gov.au or [email protected]

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