WikiLeaks Banking Blockade: Australian Competition and Consumer Commission (ACCC)

by karwalski

I wrote to Australian Competition and Consumer Commission (ACCC) shortly after the Beat the Blockade day of action on April 5 regarding my concerns that Westpac, Mastercard Australia Pty Ltd and Paypal Australia Pty Ltd have disabled my capacity to transfer funds to WikiLeaks. I chose these companies as I am a customer of each of them.

The ACCC ensures compliance of Australian business to the Competition and Consumer Act 2010 (herein refered to as ‘the Act’), it is not an easy read with 179 section (link1)

The ACCC is designed to encourage fair trading and discourage anti-competitive conduct through a specific set of competition and consumer protection rules.

In the response I received from ACCC on the 1st of May, they stated

“Generally speaking, individual companies are not obliged to supply you with particular products or services; they are free to make their own decisions about who they deal with and there is no automatic right on your part to be supplied by them.

There are only a limited number of circumstances where a refusal to deal will constitute a breach of the Act; these include situations where there are agreements between competitors (horizontal) or between traders at different levels of the supply chain (vertical) which restrict supply to others in the market, or where a supplier of goods has a substantial degree of power in a market and uses that power to affect competition or prevent entry to a market (misuse of market power).”

The ACCC also pointed me towards section 46 of the Act, titled ‘Misuse of market power’.

Direct link to Section 46 of the Act can be found here (link2)

“(1) A corporation that has a substantial degree of power in a market shall not take advantage of that power in that or any other market for the purpose of:
(a) eliminating or substantially damaging a competitor of the corporation or of a body corporate that is related to the corporation in that or any other market;
(b) preventing the entry of a person into that or any other market; or
(c) deterring or preventing a person from engaging in competitive conduct in that or any other market.”

The ACCC paraphrased this and stated the following in the letter (I cannot locate an amendment to the act to reflect the same).

“Section 46 of the Act prohibits Australian corporations with substantial market power misusing that power for the purpose of (a) eliminating or substantially damaging a competitor, or (b) preventing or deterring a business engaging in competitive conduct in any market.”

The ACCC ruled out “eliminating or substantially damaging a competitor” saying it would not be applicable as “the funds transfer providers are not competitors of WikiLeaks”.

However they did leave the second mentioned “preventing or deterring a business engaging in competitive conduct in any market” open to interpretation, and they stated “In that clause, ‘competitive conduct’ refers to activities by the target business in competition to the business of the alleged predator”.

If I refer back to the wording of the Act they use the wording “competitive conduct in that or any other market”. In the case of WikiLeaks and the financial institutions, WikiLeaks is being deterred from competitive conduct in the media market. I can make the simple connection that “any other market” includes media organisations.

The ACCC makes it clear that they do not provide legal advice, and given the information that I had provided (I should have pointed them towards a web search engine) the ACCC claim that “there appears to be no evidence of any anticompetitive agreement. Accordingly, this office does not propose to take any further action in respect of this matter.”

And they pointed me towards the pamphlet ‘Refusal to Deal’ (link3)

Contact the ACCC at 1300 302 502 (Australia) or find their contact details here (link4)
You can use the online complaint form to log your own complaint about the WikiLeaks Banking Blockade (link5)

WikiLeaks wants to litigate in different jurisdictions against the finance institutions that have put up an unlawful and arbitrary blockade to cripple WikiLeaks. Litigation proceedings have already started in the EU, and are underway in several other countries. If you are a lawyer and you think you can help, contact WikiLeaks on: litigjur(AT)mail(DOT)be and let them know what your specialty is, how you can help, and how much time you can dedicate to lending your support to WikiLeaks. Put LITIGATION + your country in the subject line.

Find out more about the WikiLeaks banking blockade here (link6)