DoJ launches anti-competition investigation into leading online platforms

The US Department of Justice announced on Tuesday it is investigating if leading online platforms have undertaken anti-competition, anti-innovation, and other consumer harming practices.

Though the DoJ does not name the companies it will focus the investigation on, when it specifies “concerns that consumers, businesses, and entrepreneurs have expressed about search, social media, and some retail services online”, it would be fair to assume the targets are Google, Facebook, Twitter, Amazon, and when it comes to digital content distribution, Apple.

“Without the discipline of meaningful market-based competition, digital platforms may act in ways that are not responsive to consumer demands,” said Makan Delrahim, the Assistant Attorney General of the Department’s Antitrust Division. “The Department’s antitrust review will explore these important issues.”

The DoJ is seeking “information from the public, including industry participants who have direct insight into competition in online”. If found guilty, and this may including offences other than anti-competition, according to The Wall Street Journal sources, “the Department will proceed appropriately to seek redress.”

This is the latest of a series of actions taken by the US legislature and administrative authorities to rein in the power of the online platforms. In March the House Antitrust Subcommittee launched a probe into online market competition.

“The growth of monopoly power across our economy is one of the most pressing economic and political challenges we face today. Market power in digital markets presents a whole new set of dangers,” House Representative David N. Cicilline, Chairman of the Antitrust Subcommittee said at the time.

More recently companies including Google, Facebook, Amazon have been subjected to House Judiciary Committee enquiry into their practices related to market competition, amid reports that these companies have gained shares in their key markets. Facebook is on the eve of a settlement with the Federal Trade Commission that could run as high as $5 billion following the investigation of its privacy breach.

The most common measure used by the leading online companies to fend off competition is to buy the competition out. The most high-profile cases include Facebook’s acquisition of WhatsApp and Instagram, Google’s acquisition of Waze, Amazon’s acquisition of Twitch, and Apple’s acquisition of Shazam. In some cases, for example the acrimony between Spotify and Apple, some restrictive policy changes may be applied to limit the growth of a competition, especially if the competition relies on the platform. Tim Cook, CEO of Apple, however denied the company is a monopoly in a CBS interview in June, claiming Apple is not in a dominant position in any market.

The power wielded by the online platforms has not escaped the attention of the politicians, especially the presidential candidates. President Trump has repeatedly lambasted the alleged bias against conservatives by the social media giants, while Elizabeth Warren, one of the front-runner Democrat candidates, famously called for the breakup of the big internet companies. However the applicability of such proposed breakups is debatable. The most high-profile attempt to break up a company in recent history was the one targeted at Microsoft, the decision rescinded on appeal. Even if a breakup does happen, its long-term effectively may also be questioned. The last memorable breakup of a monopoly in the last 40 years was the geographical split of AT&T’s regional operations into seven Baby Bells. Four of them were later acquired by the current AT&T.

Europe approves new internet rules designed to rein in Amazon and co

As part of the overall Digital Single Market programme, the European Parliament has voted to approve new regulations claiming to protect European businesses and consumers when using online platforms to trade.

The “Regulation on platform-to-business trading practices” has been almost two years in the making since the publication of a document titled “Online Platforms and the Digital Single Market: Opportunities and Challenges for Europe” by the European Commission in May 2016.

The EU executives were understandably happy with the passing of the new rules. “We are delighted by the overwhelming support to the new rules on online platforms’ trading practices among the members of the European Parliament. As the first-ever regulation in the world that addresses the challenges of business relations within the online platform economy, it is an important milestone of the Digital Single Market and lays the ground for future developments. Not only will it improve trust, predictability and legal certainty, it will also offer new and accessible options for redress and resolution of disputes between businesses and platforms,” said the official statement, jointly signed off by Andrus Ansip, the Commission’s Vice-President for the Digital Single Market, Elżbieta Bieńkowska, Commissioner for Internal Market, Industry, Entrepreneurship and SMEs, and Mariya Gabriel, Commissioner for Digital Economy and Society.

What drove the Commission to undertake such an initiative two years ago was the understanding that there is a lack of a redress mechanism when the European SMEs encounter problems when trading on the global platforms (companies singled out include Booking.com, Facebook, eBay, and Amazon), for example, “delisting without statement of reasons or sudden changes of Terms and Conditions”. The Commission has also assessed the effectiveness of legislative vs. non-legislative measures, but believed an EU-wide legislation is necessary.

The Regulation is aimed to achieve three main objectives as are outlined in the Impact Assessment Summary published a year ago:

  1. To ensure a fair, transparent and predictable treatment of business users by online platforms
  2. To provide business users with more effective options for redress when they face problems
  3. To create a predictable and innovation-friendly regulatory environment for online platforms within the EU

Although it has been approved by the European Parliament, the regulation still needs to be formally passed by the Council of the European Union, which represents the governments of the member states and can be roughly seen as another “chamber” of the union’s legislature. There is no definite timeline on when the Council will make the decision. However, by the reading of the press statement where the Commissioners thanked the member states “for their great efforts to reach a good compromise in a very short period of time. This is yet another positive development ahead of the upcoming European elections,” the Council may not be able to vote on it before the European Parliamentary election in May. After the final approval, the regulation will enter into force 12 months after it is published in the Official Journal.

This is the latest internet-related legislation the EU has made recently. On 15 April the Council passed the updated Copyright Directive “fit for the digital age”, which has proved controversial.  There are also legislation and regulation updates in member states. France has started levying 3% income tax on digital companies with sales in excess of €25 million in France and €750 million globally, without waiting for an EU-wide tax regime as part of the Digital Single Market. The UK, still an EU member state at the time of writing, has not only considered setting up a new regulator to oversee the digital world and started the consultation process of a “code of practice for online services” to protect children, but will also formally introduce the “porn block” on 15 July, which has been called “One of the Worst Ideas Ever” by some critics.