The argument of this article – which can be found here – is straightforward: “competition law as it stands is not well-equipped to address (all of) the problems a very large concentration of private power such as Google poses to Internet users. However, unlike the ‘antitrust hipsters’, it is argued that reform to competition law is insufficient – other areas of law and regulation may be more appropriately employed to ensure user autonomy in these circumstances.

The paper begins with an extremely cursory analysis of the Commission’s decision in the Google case. Since the decision is not yet published, the paper relies on comments from the Competition Commissioner that there was an abuse because Google: “promoted its own comparison shopping service in its generic search results, and demoted the results of its competitors, with the effect that competitors were ‘denied… the chance to compete on the merits and to innovate’ and European consumers were ‘denied… a genuine choice of services and the full benefits of innovation”. The then analyses the various concerns that have been raised about the main internet platforms, most of which are not related to the goals of competition law (e.g. bias in how information is presented including search engine results; the display of ‘fake news’ and their increasing influence over the democratic process in certain countries such as the USA.) As such, the author argues that Google’s conduct  does not fall squarely into a recognized ‘head’ of abuse. More importantly, the Decision does not seem to address a number of concerns that have been raised during the Commission’s investigation into Google:

  • Data – the Commission Decision does not address in any way the vast amount of data that Google, in its operations, gathers about its users. This seem to be broadly correct: it is unclear how to operationalise data protection concerns for antitrust purposes; and given the existence of other internet platforms, it’s not even clear that Google has a dominant position. The author acknowledges the current German investigation into Facebook’s contractual terms, but comments that “at a glance, the factual scenario seems more appropriate for a consumer law intervention than a data protection or competition intervention.
  • Algorithmic Transparency – Another issue unresolved by the Commission’s Decision is that of greater transparency around Google’s search algorithm. It remains to be seen if the Commission’s Decision explores the relationship between commercial confidentiality/trade secrets and abuse of dominance. However, the author considers – somewhat generically – that in a: “digital economy and society increasingly governed by proprietary algorithms, more clarity on this relationship – and the relationship between algorithms, due process and human rights as well – is necessary.
  • Who benefits – Lastly, the author questions the extent to which European consumers or even ‘users’ will benefit in a meaningful way from the Decision: “rhetorically, the Commission has stated that its Decision will benefit consumers by giving them increased choice. However, if Google must only make fairly superficial changes to its search results page and not be forced to increase transparency as to its algorithm, then these consumer benefits appear minimal (…)The extent to which Google’s shopping service competitors, rather than end-users, benefit from the Decision remains to be seen.

The paper then moves to its actual goal: questioning whether, given the scale and variety of the problems posed by Internet intermediaries, competition law is actually the correct or most appropriate tool to deal with the power they wield. While a presumption that competition law is indeed the best tool for these purposes seems to underpin much of the “hipster antitrust” agenda, the author is critical of it. First, the changes required to make competition law reflect “public interest” concerns on both sides of the Atlantic are unlikely to happen quickly and easily. Furthermore: “the question still remains of whether competition is the appropriate tool to deal with the identified problems such as those presented by Internet intermediaries. (…)  Given the multifaceted nature of platform power, a regulatory response incorporating various areas of law and policy is probably more appropriate than reliance only on competition law. Ex ante regulation may be one tool to be considered (…). Consumer law could also play a larger role than previously. Despite its deficiencies, data protection (…) will also address some data concerns.

 

I have some reservations about the wisdom of commenting on a decision that is yet to be published. Unfortunately, the academic imperatives of relevance and impact create some perverse incentives (i.e. clickbait). Many pieces using Google as a hook are coming, so we better get used to it. And some of the pieces are actually quite interesting, if ultimately speculative and theoretical.

In this particular case, Google is just an excuse to “discuss the (suit)ability of competition laws to address the problems posed by large private actors in the digital economy”. From a competition perspective, surely the ultimate question would have to be not only who benefits – which, as we saw, the author somehow links to the algorithmic structure of Google search –, but how does the conduct harm consumers. The  piece seems to me to attempt to graft a specific competition decision into a much wider, only lightly related issue: do we need a new regulatory structure to deal with the Internet economy and, if so, how does competition law fit into it?

Personally, I think that this question is not only interesting – it is likely to be the main issue regarding the relationship between regulation and competition law in coming years, at least until the regulatory framework is updated for the new economy.  Having said that, I’m not sure that trying to graft such a large question into individual decisions is helpful, other than by serving as an example of the very issue the author is concerned with: the existence of attempts to use antitrust to address perceived problems that fall outside the traditional scope of competition law because: “in sectors where there is no or little ex ante regulation, competition acts as an arbiter of last resort” And, insofar as this seems to be to be the case, I have to agree with the author: an interdisciplinary approach, that includes but is not limited to antitrust, would seem to be in order.

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