Simonetta Vezzoso ‘Competition Policy in Transition: Exploring Data Portability’s Roles’ (2021) Journal of European Competition Law & Practice 12(5)

Several reform proposals circulated in the last two years recognise that data portability should play an increasingly important role in the digital economy. This paper, available here, explores data portability from an EU competition policy perspective. It points out that data portability can play three distinct roles, namely: (i) enabling switching, (ii) enabling data fluidity (iii) enhancing consumer empowerment and data sovereignty. These different roles are analysed against the background of (a) traditional competition law, (b) a market investigation regime, and (c) an ex-ante regulatory framework targeting large online platforms with gatekeeping power. Section II looks at the regulation of data portability, particularly non-personal data. Data can be either personal or non-personal. Personal data portability is a right under the GDPR. The data portability of non-personal data is foreseen by the EU Regulation on the Free Flow of Non-Personal Data in the European Union (Free Flow Regulation, or FFNPDR, in the following), which entered into force in May 2019. Besides…

Francisco Beneke and Mark-Oliver Mackenrodt on ‘Remedies for algorithmic tacit collusion’ (2021) Journal of Antitrust Enforcement 9 152

There is growing evidence that tacit collusion can be autonomously achieved by machine learning technology. However, outlawing such conduct is pointless unless there are suitable remedies to address them. This article, available here, explores how fines, and structural and behavioural remedies, can serve to discourage collusive outcomes while preserving incentives to use efficiency-enhancing algorithms. Section II provides a brief overview of the properties of deep learning methods and their applications to pricing decisions. Different machine learning methods can be usefully deployed to make pricing decisions. Reflecting statistical analysis, machine learning has the ability to automate pricing decisions by using hundreds or thousands of variables in ways that would be otherwise unavailable to market participants. Reinforcement learning may allow firms to automate pricing strategies according to variables such as reactions by competitors and the impact this has on profits or market share. As an algorithm’s problem-solving capabilities improve, market prices will tend to become more stable and converge to a price…

Frederic Jenny ‘Changing the way we think: competition, platforms and ecosystems’ (2021) Journal of Antitrust Enforcement 9 1

Firms are supposed to operate on predefined markets for goods or services where they compete against similar firms that offer substitutable products or services. All economic agents are assumed to be profit-maximisers that will not sell below average variable costs. However, this is not how the digital economy operates. As a result, many of the traditional tools used by competition authorities to assess relevant markets, or the intensity of competition between firms, are difficult to use or inadequate to assess competition issues between ecosystems in the digital world. Further economic thinking, and an understanding of the business models of digital ecosystems, are needed to allow competition authorities to make informed decisions about competition on digital markets. This article, available here, reviews some of the challenges competition agencies face. Section 2 looks at digital markets. Digital markets differ from traditional markets in a number of ways. The digital world has low costs and no-distance, which means that the delivery of services…

Mark Lemley ‘The Contradictions of Platform Regulation’ (2021)

Everyone wants to regulate the big tech companies. Efforts to rein in big tech represent a confluence of many different factors, but most of all reflect the outsized influence these companies have come to have on almost all aspects of our lives. However, the political consensus around regulating the tech industry is illusory. While everyone wants to regulate big tech, it turns out that they want to do so in very different, indeed contradictory, ways. This paper, available here, identifies some of the contradictions of platform regulation, their implications, and whether there is a way forward. Part I explores the contradictions of platform regulation proposals. Everyone may want to regulate big tech, but there is no agreement on what government should require big tech to do (or forbid big tech from doing). Some proposals are plainly contradictory. For example, there are widespread proposals to make internet platforms responsible for content posted on them – but while some want to encourage…

Magali Eben and Viktoria Robertson ‘The Relevant Market Concept in Competition Law and Its Application to Digital Markets: A Comparative Analysis of the EU, US, and Brazil’ (2021) Graz Law Working Paper No 01-2021

Market definition is a core analytical tool that helps in the assessment of anti-competitive agreements, unilateral conduct and mergers. However, the difficulty of delineating a relevant market with the required predictability in digital markets has led some to question whether market definition can continue to fulfil its traditional functions in these dynamic market environments. The present contribution, available here, first surveys the general approach to market delineation in the EU, the US and Brazil. Against this background, it then embarks on a discussion of market definition in digital markets in each of these jurisdictions, with a particular focus on multi-sided markets, zero-price services and the concept of digital ecosystems. Section 2 surveys the general approach to market delineation in the EU, US and Brazil. The main parameters of market definition are strikingly similar in the EU, the US and Brazil. All these competition laws heavily rely on the relevant market as an analytical tool. However, while market definition is mainly…

Özlem Bedre-Defolie and Rainer Nitsche ‘When Do Markets Tip? An Overview and Some Insights for Policy’ (2020) Journal of European Competition Law & Practice 11(10) 610

Competition authorities are increasingly concerned that their tools are not fit to deal with digital multi-sided platforms, which operate in markets that have a tendency to ‘tip’. However, the academic literature does not yet provide guidance on how to identify the likelihood of tipping in a market. Instead, the literature identifies a number of factors that might foster or mitigate tipping under certain circumstances. This paper, available here, reviews the literature and identifies the key market characteristics that facilitate tipping and those that mitigate it. It also advances four key questions to guide policy makers in the development of methods to identify the likelihood of tipping. Section 2 discusses factors that facilitate market tipping. The authors identify six key factors that foster tipping in markets with multisided platforms: positive network effects, single-homing and switching costs, free services, data-enabled learning, trust, and platforms’ complementary offerings. Markets with multisided platforms typically also exhibit classical factors that foster concentration, like economies of scale…

Herbert Hovenkamp ‘Antitrust and Platform Monopoly’ (2021) 130 Yale L.J

Should antitrust policy do more to promote competition in digital platform markets? Is antitrust law sufficient to address competition problems in digital platforms, or are those problems so common and widespread that they require more pervasive public control? This article, available here, argues that sustainable competition in platform markets is possible, and that the individualised approach of the antitrust laws is better for consumers and most other affected interest groups than more intrusive regulation. Antitrust intervention will be less likely to reduce product or service quality, limit innovation, or reduce output than other regulatory alternatives. To achieve these outcomes, antitrust law needs to treat digital platform markets for what they are: markets that have some unique characteristics, but markets nonetheless. As a result, for the most part competition problems in them can be controlled with the antitrust tools we have. Section I considers digital platform monopoly. Antitrust policy is concerned with exercises of market power. The power question for digital…

Christopher Yoo on ‘Unpacking Data Portability’ (2020) Competition Policy International

Data portability has become a hot topic in competition law. Legislators and enforcement officials around the world have shown increasing interest in data portability as a competition law remedy. Although some commentators have suggested that data portability represents low hanging fruit compared with more complex remedies such as interoperability, the debate about how to implement any such mandate remains underdeveloped. This paper, available here, argues that data portability is not a panacea, and that enforcement officials will have to engage in the type of nuanced, fact-specific determinations that characterise classic antitrust analysis. Section 2 points out that not all data are created equal. To date, discussions have largely treated data as a monolithic phenomenon without drawing any distinctions among particular types of data and their different uses. Although advocacy rhetoric tends to talk about “big” data, the trade press repeatedly emphasises that size is not the only thing that matters. The most famous formulation claims that data consists of three…

Vikas Kathuria and Jure Globocnik ‘Exclusionary conduct in data-driven markets: limitations of data sharing remedies’ (2020) Journal of Antitrust Enforcement 8 511

By depriving its rivals of gaining scale in data, a dominant player can successfully exploit demand-side scale economies, i.e. network effects, to its benefit in a two-sided market. In effect, dominant undertakings may be able to exclude their rivals from accessing user data and thus deprive them of scale in markets that are characterised by network effects. In the face of exclusionary conduct by a dominant undertaking in data-driven markets, a critical question relates to the nature of the remedy that can offset the harm to consumer welfare and restore competition. Intuitively, mandating a delinquent dominant undertaking to share wrongly withheld data appears to be an optimal remedy. This article, , available here, analyses the viability of mandatory data sharing as a remedy to restore competition in the affected market – and concludes that mandatory data sharing is not the optimal solution to remedy loss to consumer welfare. Section 2 considers the objectives of remedies in EU competition law. To…

Gönenç Gürkaynak, Ali Kağan Uҫar and Zeynep Buharali ‘Data-Related Abuses in Competition Law’ in Standing Up for Convergence and Relevance in Antitrust – Frédéric Jenny Liber Amicorum – Volume I (eds. Ahmad and Charbit, 2019) Concurrences

Data has become an indispensable business tool, and, as a result, the collection and use of data by dominant undertakings can give rise to competition law concerns. This article, available here, examines data-related abuses in competition law, and seeks to provide an overview of specific types of abuses arising from the use of data. Section II looks at the definition of data. Data is often defined as “information that can be stored and used by a computer program.” Accordingly, “big data” refers to “large amounts of different types of data produced at high speed from multiple sources, requiring new and more powerful processors and algorithms to process and to analyse’. As “data” increases in volume, diversifies in nature and content, and keeps on flowing rapidly through the veins of the global economy, its collection and processing creates increasingly valuable commercial opportunities. Undertakings more and more see data as an indispensable tool for improving business decisions and strategies, and for improving…