Across the globe, competition authorities and legislators are keenly exploring new curbs on powerful, US ‘big tech’ companies – most prominently, Google, Apple, Facebook and Amazon. In the EU, there is a particular focus on developing regulation of “digital platforms” – search engines, social media, app stores, online market places, and price comparison websites that link sellers with customers.
The European Commission, and in particular, the Directorate General for Communications Networks, Content and Technology (DG CNECT) and the Directorate General for the Internal Market, Industry, Entrepreneurship and SMEs (DG GROW) recently put together an informal working document with ideas for extending regulation.
The Commission’s working document can be seen as building on a number of papers that have been written in the last year or so considering whether and how existing laws dealing with competition should be developed to meet the challenges posed by digital platforms. Those papers universally recognise the immense benefits that digital platforms have brought to users. Many also tend to suggest that there is a consensus on the need for regulatory change.
Meredith Pickford QC is a barrister at Monckton Chambers in London who specialises in competition law and economic regulation. He was asked by Google to provide his personal, independent view of the Commission’s proposals, based on his experience in this area of law of over 20 years. He has produced a paper, which seeks to examine the foundations for the so-called consensus for further regulation. He does so by reference to specific examples such as ‘self-preferencing’ – when companies provide themselves with advantages that they withhold from their rivals. He assesses the need for, and appropriate content of, new regulatory rules in the light of established jurisprudence and competition policy.
Meredith concludes that there may be scope for development of competition law and regulation to make it more effective in connection with digital platforms in particular. Measures worth proper consideration include:
- strengthening personal data ownership and portability;
- developing a procedure for designating market power in certain digital markets to allow swifter action to tackle competition problems;
- making greater use of measures that allow action before the conclusion of a full competition law investigation; and
- developing existing case-law that prevents companies from misleading consumers by, for example, presenting search results as more relevant to them than could fairly be claimed.
However, Meredith also concludes that there is no need for a radical departure from established principles enshrined in existing, orthodox competition law in the context of digital platforms. Suggestions that ‘technology is different’ are overstated. There is no evidence that innovation is suffering in the technology sector – far from it: companies such as Google, Apple and Amazon are the world’s biggest innovators and investors in R&D. Moves to develop special rules for digital platforms therefore need particularly careful scrutiny. They threaten to undermine innovation that has led to technology companies bringing immense benefits to people’s lives – benefits made all the more important as a result of the restrictions brought about due to the Covid pandemic.
Meredith’s paper is available here.