Abstract
The debate surrounding ‘big tech’ and antitrust has dominated public policy discourses over the past few years in many parts of the world. Noteworthy is that several countries and regions, including China, the European Union, and the United States, have launched investigations into the allegedly anticompetitive and exclusionary business practices of companies such as Amazon, Apple, Facebook, and Google and their Chinese counterparts, Alibaba and Tencent. This paper builds on the renewed interest in the topic and discusses in detail – and from an ordoliberal perspective – the key characteristics of the digital economy, the business conduct of tech platforms, and the corresponding antitrust concerns, as well as possible reform steps which could help to strengthen modern-day competition law and policy (and antitrust enforcement).
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Notes
Cp. Wörsdörfer 2020.
Cp. Rifkin 2015.
Cp. Petit 2020.
Cp. Wörsdörfer 2020.
Cp. Eucken 1952/2004.
Cp. Wörsdörfer 2018.
Cp. Subcommittee on Antitrust, 2020.
Cp. Subcommittee on Antitrust 2020.
Cp. Crémer et al. 2019.
Cp. Swire and Lagos 2012.
Wu 2011, p. 25.
Cp. Commission ‘Competition Law 4.0’ 2019.
Cp. Subcommittee on Antitrust 2020.
Cp. Subcommittee on Antitrust 2020.
Cp. Petit 2020.
Cp. Wörsdörfer 2013a.
Cp. Wörsdörfer 2020.
Cp. Bork 1978/1993; Bork and Bowman 1965; Hovenkamp 2019; Hovenkamp and Scott Morton 2020; Posner 1978; for more information on the differences between the Chicago School, Harvard School, and ordoliberalism see Kornelakis and Hublart 2021; Wörsdörfer 2020; for a defense of Bork’s consumer welfare standard and a critique of so-called ‘populist’ or ‘hipster antitrust’ see Wright et al. 2018.
Cp. Baer et al. 2020, pp. 33: “Compare the Obama administration (2009-2016) to the first 3 years of the Trump administration (2017-2019). Total criminal cases filed declined from an average of 60 per year in the Obama years to 23 in the Trump years, and the number of corporations charged averaged 20 per year under President Obama’s [DOJ], compared with just eight per year by the Trump administration’s [DOJ]. At the same time, and perhaps relatedly, the Trump administration’s Antitrust Division abandoned a longstanding policy against allowing corporations to avoid criminal antitrust convictions for bid-rigging and price-fixing by entering into deferred prosecution agreements. That policy change, announced in July 2019, was selectively applied to large companies, mostly large pharmaceutical companies, while smaller companies are still required to plead guilty and suffer the consequences.”
Cp. Ash et al. 2019 (on the link between Chicago School ideology, the Manne Economics Institute for Federal Judges, and the conservative-libertarian verdicts of federal judges); Baer et al. 2020; Cohen 2020; Hovenkamp 2021b (on the U.S. Supreme Court’s [alleged] ‘strong anti-enforcement bias’); European Union 2021; OpenSecrets 2021; Subcommittee on Antitrust 2020 (on big tech’s agency rent-seeking and lobbyism).
Cp. Baer et al. 2020.
The Subcommittee on Antitrust recommends strengthening Section 7 of the Clayton Act and Section 2 of the Sherman Act. That is, the law on vertical mergers should be strengthened and merger enforcement invigorated. The structural presumption should read as follows: “[M]ergers resulting in a single firm controlling an outsized market share, or resulting in a significant increase in concentration, would be presumptively prohibited under Section 7 of the Clayton Act” (Subcommittee on Antitrust 2020, p. 393). Section 2 of the Sherman Act, on the other hand, should be strengthened by introducing a prohibition on abuse of dominance – especially regarding third-party sellers, suppliers, workers, and consumers – and by clarifying the prohibitions on monopoly leveraging, predatory pricing, denial of essential facilities, refusals to deal, tying, and anticompetitive self-preferencing and product design.
Note that traditional market definitions and market share measurements can be misleading or unreliable in the context of digital platforms and other zero-price markets. Especially challenging is the power assessment in networked or two-sided markets such as social networking/search and advertising or rideshare riders and users (i.e., sharing economy) (cp. Codagnone and Martens 2016; Passaro 2018). What is needed to address those issues are empirical data and analyses of big tech’s market power (e.g., their access to and control over personal data) and a case-by-case or firm-specific differentiation. A possible solution could also be a so-called cluster-market analysis, e.g., for the market of personal social network services, which would not only include Facebook but also Instagram and WhatsApp (cp. Hovenkamp 2021a).
Special attention needs to be paid to machine learning (ML)-based pricing algorithms. The main problem here is that they can enable collusion – e.g., via price fixing – and other forms of anticompetitive behavior (e.g., tacit coordination leading to autonomous collusion). In addition, they might lead to increased personalization (i.e., personalized pricing), which could be used to exploit consumer vulnerabilities. The Furman Report thus recommends monitoring the use of ML-algorithms and their possible anticompetitive effects (cp. Furman et al. 2019).
Cp. Klobuchar 2021.
According to Elhauge (2018), horizontal shareholding should also be reviewed and monitored (in addition to scrutinizing horizontal mergers): Allowing investment funds or institutional investors to own – i.e., control – multiple companies in the same industry might not only lead to conflicts of interest; it might also lead to less competition, higher prices for consumers, and the formation of cartels. Horizontal shareholding should hence be scrutinized – same as insider trading. For instance, governments could outlaw common stock ownership of competing companies in the same industry above certain limits (cp. Klobuchar 2021).
The main idea behind adopting such a ‘prophylactic ban’ on certain M&As is to limit the elimination of (tech) start-ups and to support the creation of small firms (cp. Klobuchar 2021).
According to the Commission ‘Competition Law 4.0’ (2019), new guidelines are also needed for start-up acquisitions by dominant digital companies. Those guidelines should specify the relevant theories of harm, e.g., conglomerate, data-based, or innovation-based theories of harm.
Glick et al. (2020) argue in favor of ‘new’ U.S. merger guidelines, that is, a return to the 1968 Merger Guidelines and the abolition of the Chicago School-inspired ‘potential competition doctrine’ – which makes it unnecessarily hard to challenge big tech acquisitions.
The Furman Report recommends updating the Merger Assessment Guidelines of the U.K.’s Competition and Markets Authority (CMA): The new guidelines should make use of the so-called balance of harms approach – which considers the scale and likelihood of harm in merger cases – and tolerate ‘some false positives’ to avoid ‘some false negatives’; lastly, it should make use of the transaction value test and review all M&As above a particular value (cp. Furman et al. 2019).
Cp. Hovenkamp 2021a.
Noteworthy is that the German Commission ‘Competition Law 4.0’ (2019) does not recommend new transaction-value-based threshold levels for M&As, nor does it recommend the ex-post monitoring of M&As and possible demergers in case serious competitive problems emerge within a certain period following the respective M&A. The Commission argues that a merger unwinding would entail a substantial degree of legal uncertainty for the involved companies, especially during the waiting period, and could thus prevent future M&As and possible synergies.
Cp. for a critical perspective on corporate break-ups: Hovenkamp 2021a: Hovenkamp is skeptical of divestitures because he fears that sell- or spinoffs might harm the productivity and efficiency of a company (and the economy as a whole) and thus negatively impact consumers, employees, and suppliers. Instead of an asset restructuring (i.e., corporate break-up), Hovenkamp recommends a management or ownership restructuring: Such a restructuring would force the different units within the same corporate organization to behave competitively vis-à-vis each other; this internal competition might be beneficial for all involved and affected stakeholder groups. Hovenkamp is also against so-called platform separations and other forms of business restrictions (i.e., legal restrictions on the range of business activities). Some experts, for instance, have suggested preventing Amazon from selling both third-party and house brands; Hovenkamp, however, views this proposal as a “harmful overkill” (p. 1965) – one that could potentially lead to higher prices or lower output and thus (primarily) harm consumers (for more information on structural separations [i.e., ownership and functional separations and line of business restrictions] and prohibitions of dominant platforms from operating in adjacent lines of business to reduce conflicts of interest and power leveraging see Subcommittee on Antitrust 2020).
Cp. Eucken 1999.
Cp. Shapiro 2019.
Cp. Furman et al. 2019.
Data portability or transferability includes the right to transfer personal data in machine-readable form from one data processor or service provider to the next; in addition, they allow for the ongoing, that is, real-time access to and transfer of data to providers of complementary services. Data mobility is closely related to interoperability as it requires interoperable data formats. According to the report of the Commission ‘Competition Law 4.0’, firms with ‘data power’ and a (quasi-)monopolistic position in ‘data-driven business model markets’ must ensure the real-time data portability and interoperability of data formats with complementary services to enable multi-homing and platform switching. The report also argues that the denial of data access might constitute an abuse of a dominant market position under certain circumstances. That is, companies that do not grant other firms or data trustees access to their non-personal or anonymized data might be sued under the current antitrust regime (cp. Commission ‘Competition Law 4.0’ 2019; for more information on the philosophical and legal debates surrounding data portability [i.e., ‘right to data portability’], data ownership, and data protection/privacy see Hummel et al. 2020; Polanski 2018; and Swire and Lagos 2012).
Interoperability and data portability would require platforms to make their services compatible with different networks – like emails or phone calls – and make content and information easily portable between them.
Cp. Swire and Lagos 2012.
Note that personal data would be excluded unless it is aggregated or anonymized.
The Commission ‘Competition Law 4.0’ also recommends organizing third-party access to the data accounts of users with the help of data trustees or intermediaries. Their task would be to organize the pooled data access on behalf of data subjects. This kind of data access and sharing would require data subjects’ free, prior, and informed consent and robust data protection rules (cp. Commission ‘Competition Law 4.0’ 2019). Hovenkamp (2021a) also suggests the pooling of essential information and data, that is, to place user data into a shared database that is equally accessible by various firms. However, this reform proposal has been criticized by experts for not paying sufficient attention to eventual data security issues and privacy concerns. In addition, it might lead to the possible disclosure of sensitive commercial information to competitors (cp. Swire and Lagos 2012).
Cp. Furman et al. 2019.
Cp. Hovenkamp 2021a.
Cp. Wörsdörfer 2020.
So far, the plaintiff in the U.S. (and elsewhere) must demonstrate that the predatory pricing scheme would increase prices above competition price – so that initial losses are recouped through monopoly prices. This, however, is almost impossible to prove in most digital and other zero-price markets.
Cp. Klobuchar 2021.
Cp. Klobuchar 2021.
Cp. Eucken 1952/2004.
Cp. Commission ‘Competition Law 4.0’ 2019; Wörsdörfer 2020; see also the 2019 P2B Regulation (E.U.) 2019/1150 of the E.U. which imposes obligations on online intermediation service providers, e.g., the “duty to make transparent their terms and conditions of service, to state reasons in the event of a restriction, suspension or termination of intermediation services, to disclose ranking criteria, and to reveal any self-preferencing policies or the preferencing of third parties in the intermediation of goods or services and/or in data access” (Commission ‘Competition Law 4.0’ 2019, p. 49).
Net neutrality is an essential tool in the context of slowing down – or reversing – the trend towards the monopolization of the digital economy. Proponents of net neutrality argue that open and equal access to the internet as a common good and public utility is essential, especially in the context of overcoming social and educational gaps (i.e., digital divide) and the promotion of the democratization of knowledge and freedom of information and speech (cp. Wu 2003). Tiered internet services, on the other hand, would favor powerful and wealthy companies and discriminate against small and medium-sized companies – as only affluent corporations could afford the highest levels of service. This, in turn, would undermine competition as one of the critical drivers of innovation and amplify the risks associated with monopolies, oligopolies, and cartels. Besides, tiered internet services come with the risk that companies controlling the internet – the so-called gatekeepers of and to the internet – might block or degrade access to non-favored content or applications (i.e., risk of potential censorship [cp. Wörsdörfer 2018, 2020]).
Cp. Khan 2017.
The Subcommittee on Antitrust recommends introducing “prohibitions on abuses of superior bargaining power, proscribing dominant platforms from engaging in contracting practices that derive from their dominant market position, and requirement of due process protections for individuals and businesses dependent on the dominant platforms” (Subcommittee on Antitrust 2020, p. 20). The primary goal is to prevent take-it-or-leave-it terms, to reduce the bargaining power and leverage of big tech platforms (i.e., asymmetries and dependencies between big tech and other businesses and users), and to target anticompetitive business contracts and introduce due process protections.
Cp. Subcommittee on Antitrust 2020.
“Antitrust appropriations have been nearly flat in the past decade [only 4% increase, the lowest since the late 1970s], despite nearly 40 percent growth in [GDP]. […] The Antitrust Division had 25 percent fewer full-time employees in 2019 than it did 10 years earlier. And the [FTC] has roughly the same number of full-time employees as it did in 2009. […] [In addition] [m]erger filings increased dramatically [from 1,128 in 2010 to 2,030 in 2019] [yet] civil antitrust enforcement was [nearly] flat [41 cases in 2010 and 38 in 2019]” (Baer et al. 2020, p. 14). Note that overall, the FTC and DOJ’s Antitrust Division have brought only 30-60 civil actions per year over the last two decades.
Cp. Baer et al. 2020.
Cp. Stigler Center 2019.
False positives, where good business conduct is judged to be wrong (i.e., erroneous antitrust enforcement), must be distinguished from false negatives, where anticompetitive business conduct is judged to be good (i.e., erroneous non-enforcement of antitrust).
Cp. Furman et al. 2019 (note that the DMU was set up in 2020 and is now an integral part of the CMA).
Cp. Commission ‘Competition Law 4.0’ 2019.
Cp. Klobuchar 2021.
Cp. Furman et al. 2019.
Klobuchar 2021, p. 358.
Among the most significant weaknesses of current competition law is that it is very time-consuming and costly. That is, it is standard for antitrust proceedings to take three or more years. For instance, the E.U.’s Google Shopping probe took more than six years from the beginning (initiation) until the end (conclusion) (cp. Kornelakis and Hublart 2021).
Germany has recently updated its competition law. The law contains now enhanced measures to better protect whistleblowers who provide evidence of a tech company’s abuse of market power (cp. Der Spiegel 2019).
Note that China and the E.U. have already established the so-called Competition Policy Dialogue. The primary purpose of this dialogue between European and Chinese antitrust agencies is to exchange information, provide technical assistance, and help build regulatory capacity.
Cp. Petit 2020.
According to Petit, antitrust is used in the E.U. as a “Swiss knife for welfare optimization and consumer welfare” (Petit 2020, p. 239; cp. Wright et al. 2018). This might lead to a slippery slope of using antitrust to address all forms of (non-economic) regulatory concerns – which would not only overburden antitrust but would also deflect attention from its actual purposes, that is, to protect and promote competition in and for the markets (in addition, it might lead to more corporate influence, e.g., in the form of [agency] rent seeking, and other issues associated with ‘process policy’ [Prozesspolitik] [cp. Wörsdörfer 2020]).
Note that justice and equality might be a side-product of a successful (ordoliberal) competition policy and antitrust enforcement, but it should not be their primary goal (cp. for a critical analysis: Wright et al. 2018).
Petit 2020, p. 256.
Cp. OECD 2019.
Noteworthy is that many ordoliberals are highly critical of patents and other forms of intellectual property rights. Eucken, for instance, criticizes the ‘monopolistic momentum’ and the ‘anticompetitive nature’ of patents. He also argues that intellectual property rights hamper innovation and technological progress – simply because they grant temporary monopolies to specific products and technologies – and facilitate the trend towards the monopolization of the economy, thereby endangering or undermining the competitive socio-economic order. Furthermore, he views patents primarily as an instrument used by lobbying and rent-seeking groups, ultimately leading to the politicization of the economy (i.e., the state captivated and fettered by special interest groups). Consequently, Eucken demands a fundamental reform of the current patent regime, including a shortening of the period of patent protection and an extension of licensing (cp. Wörsdörfer 2012).
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Wörsdörfer, M. What Happened to ‘Big Tech’ and Antitrust? And How to Fix Them!. Philosophy of Management 21, 345–369 (2022). https://doi.org/10.1007/s40926-022-00193-5
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DOI: https://doi.org/10.1007/s40926-022-00193-5