By Paul Hewett, CEO, In Marketing We Trust
Australian marketers are stuck in a legislative limbo and it’s having a dramatic impact.
This isn’t just stopping us from executing more effectively on campaigns, but it is really limiting what we’re able to do in terms of data strategies and other future-facing whole of business initiatives.
With our ability to track, store and manage data far outpacing the legislation that governed it, Privacy reform was overdue. Other markets took their first steps a decade ago, marking a line in the sand – but here in Australia, we delayed, debated, demurred and then finally acted.
But when we did, we bottled it. We got halfway and much too slowly.
Today, we’re paying the price.
While the rest of the world leans into AI, digital innovation and the post-privacy frontier, we’re still stuck because there is no certainty of what the rules are going to be or when they might be put in place.
Tranche one of Australia’s privacy reforms was done at the end of last year. Tranche two we were promised in early 2025. We’re still waiting and it’s dragging on ever longer. Every month we delay puts marketers further behind and widens the gap between policy and practice.
For marketers, the uncertainty isn’t just frustrating – it threatens the very practices that uphold our profession.
I say this not to stir up fear but because the delay in privacy reform directly undermines our ability to track performance, optimise campaigns and maintain the economic viability of modern marketing.
Let’s be clear: Most marketers, including myself, aren’t anti-privacy. We’re all consumers.
When we take our ‘work’ hat off it’s easy to understand the frustrations that can come with online advertising practices.
But we urgently need a clearer, more balanced framework – one that recognises the reality of how advertising works and the role it plays in a productive digital economy.
Look at where other markets are now. The EU passed GDPR nine years ago and it came into effect seven years ago. It is by no means perfect, but it does mean they’ve been able to move onto other questions – Dark Patterns (when user interfaces trick or manipulate consumers into doing something), platform accountability and even the Digital Services Act.
The US, on the other hand, has taken a looser approach in its legislation with many states like California leading the charge with things like CDPR. Overall, Americans tend to favour
innovation and competition over regulation.
You can debate the merits of each approach but at least both markets have provided clarity and direction for those operating in them.
Australia hasn’t backed either horse – and the lack of clarity is paralysing progress.
We’re stuck in a halfway zone. Tranche one has passed, but tranche two – the one that’s likely to have the biggest impact on marketers – is frustratingly vague. What we’re hearing suggests it will limit how marketers can collect and use data for targeting and measurement but no-one knows for sure.
In my opinion, that is simply unacceptable. We’re already seeing a drop in trackable user data across the board. With some of our clients, we’re measuring a significant decline in analytics. consent rates – some brands can only see 30% to 40% of their traffic. The rest is inferred or modelled.
For the biggest advertisers, with large data sets and sophisticated modelling, that’s manageable. But for the rest of the market, particularly smaller brands, it’s a real issue.
Their modelling simply can’t reach the same level of accuracy. Which means media performance suffers, strategy weakens and spend gets wasted.
Another issue that’s appeared is that the second tranche of privacy reform seems to treat all data collection as equal – high risk, high regulation. But the reality is more nuanced.
If someone clicks on a paid ad and lands on your site, you should be able to track that activity. Not their identity or their personal preferences, but just the basics: where they came from, what page they landed on and what they did next.
This is, in my opinion, the foundation of digital marketing. And yet it feels like the value
exchange – the idea that a user receives value (content, experience, utility) in return for sharing non-identifying data – is being overlooked in favour of blanket restrictions.
Of course, we need to draw a line. And yes, plenty of questionable practices deserve to be
stamped out. But lumping legitimate measurement in with predatory data mining risks doing more harm than good.
If this value exchange is slowly being eroded, that also has massive implications for the innovation which we are so proud of in Australia.
Guidance from the Productivity Commission has been clear: Australia needs to lift productivity through technology and innovation. Data is central to that. But if we regulate data use without accounting for its economic role, we’re not just slowing innovation, we’re actively working against it.
Right now, we’re trying to have it both ways – regulating like Europe while hoping for uninhibited growth. This is an unsustainable situation.
Because marketers are already disengaging. Just look at what happened with the third-party cookie phase-out. It was a classic on-again off-again relationship – and now, most marketers have tuned it out. The same will happen with privacy unless we finish what we started.
There’s likely still some time before tranche two drops. And while it’s difficult to prepare for the unknown, there are still a few key steps marketers can take that will likely work in your favour once it does:
● Double down on first-party data. It’s still the best way to maintain visibility and control;
● Adopting server-side analytics. This gives you full ownership of your customer data,
which is essential as reliance on third-party tools becomes less viable.
● Train your teams. Too many businesses are still underprepared for the privacy
landscape that’s already here. There’s a lot of good training available, I’d recommend
looking at ADMA as a great independent resource in the first instance;
● Follow the “pub test”. If your tracking tactics would make a regular person
uncomfortable, they probably won’t pass future regulation either.
Marketers aren’t asking for a free pass. We’re asking for a fair system – one that recognises the realities of digital marketing and the role it plays in Australia’s economy.
Advertising has always been one of the most resilient industries in downturns. Let’s not weaken it with indecision.
Uncertainty is the enemy of progress – and right now, this limbo is doing real harm. It’s time to finish what we started and give the industry the clarity it deserves.
Top image: Paul Hewett