IT ComplianceTechnology Law / Cyber Law

Antitrust: The Road Ahead

However, in the last couple of years, the antitrust law has been regaining momentum. The authorities have come to realize that antitrust is not all about predatory pricing. Big tech companies generate a lot of non-price complaints as well. In fact, issues like market monopoly, data privacy, suppression of competition, fair play, fake news, etc. take precedence in such complaints. These are all concerns that at least could fall under the scope of American antitrust law but mostly haven’t. As said earlier, however, things have been changing. Democrats want to do something on antitrust reform. In fact, the U.S. presidential candidate Elizabeth Warren has gone so far, so as to suggest the breaking up of the Big 5, or essentially, the Big Tech as such. The tech giants are no longer seen as the good boys of the financial world. Thus, when in 2017, a CEA report, calling for “examination” of “market structure changes throughout the supply chain” raised voice, it gave presidential candidate Sen. Amy Klobuchar, an opportunity to reframe the Antitrust laws. Two big changes that are directly relevant to Big Tech, include

  1. Call for new standards that “will prevent not only mergers that unfairly increase prices but also those that unfairly reduce competition — they will ensure that regulators carefully scrutinize whether mergers reduce wages, cut jobs, lower product quality, limit access to services, stifle innovation, or hinder the ability of small businesses and entrepreneurs to compete.”
  2. Need to shift the rules so that “the largest mergers would be presumed to be anticompetitive and would be blocked unless the merging firms could establish the benefits of the deal.”

These reforms would certainly improve the scope and implementation of Antitrust laws, however not so drastically, so as to necessarily affect the behavior of existing tech giants. This is where Elizabeth Warren’s proposal comes in. Her plan would change the tech world, as we see it today. Essentially, what her proposal says is that any company with an annual global income of more than $25 billion that offers to the public an online marketplace, an exchange, or a platform for connecting third parties, would be designated the tag of a “platform utility”. A platform utility would be barred from owning any of the participants on the platform.

What this would mean is that companies like Amazon, Google, Apple, Facebook, etc. can no longer promote their own products on their own platforms. So no Amazon Basics batteries in the online store, only batteries made by third parties like Duracell. No Google Reviews of local restaurants on the search page, only search results for reviews by Yelp and other third parties. Smaller companies, though subject to the act, would face lower regulatory barriers, so as to promote “fair, reasonable, and nondiscriminatory dealing with users”. Now, the European antitrust law has been more proactive and works similar to the proposed amendments to the U.S. antitrust laws. It has already hit Google with fines for favoring its own products and content in Google searches and the Play Store (and also their apps on the Android platform).

This would not really impact the core business models of Microsoft and Apple in the same way as it would Google, Facebook, and Amazon, but as Warren, herself later acknowledged, this would render illegal the current setup of the iOS App Store and Microsoft’s Xbox Store. However, the question then arises, with Donald Trump at the helm, would we get the requisite changes. The next president would certainly be appointing a director of the Justice Department’s antitrust division. Thus, we would certainly be getting reforms, but consequently, we have to make sure that such antitrust measures, do not hinder future technological developments, due to lack of funds or investments by the aforementioned companies.

Big Tech, today, is deeply engraved in each and every aspect of our life, as had already been discussed in our last article of the said series. And though issues exist, the advantages and services these companies provide, outgrow such issues. The new antitrust movement has only begun to fight and needs to take more things into consideration, thereby further widening its scope, and subsequently being more open to market reforms.

Countries like India too, need to bring further reforms to their Competition laws, in order to inculcate Antitrust related issues. Being a developing market, the Indian market is most vulnerable to such issues. Recently, the Indian watchdog has launched a case against Google for anti-competitive practices. But the law needs to be more stringent and tightly woven. Until then, the need of the hour is to keep taking inspiration from international laws, but at the same time, draft a policy that is suited to the Indian market and its diverse nature. Steps have been taken in the right direction with policies like the new draft National E-Commerce Policy being introduced to fixate intermediary liability in the E-Commerce sector, but further reforms to need to be made, and that too, real soon.

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Shivansh Tiwari

I am a tech nerd of a sort. My content might seem a little unconventional to some, but that’s the beauty of technology, what's unconventional today, might be the future tomorrow.

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