IGF 2021 WS #77 Antitrust regulation of Internet platforms in global outlook

Time
Wednesday, 8th December, 2021 (14:05 UTC) - Wednesday, 8th December, 2021 (15:35 UTC)
Room
Conference Room 4

Organizer 1: Civil Society, Asia-Pacific Group
Organizer 2: Civil Society, Western European and Others Group (WEOG)
Organizer 3: Civil Society, African Group
Organizer 4: Civil Society, Eastern European Group

Speaker 1: Milton Mueller, Civil Society, Western European and Others Group (WEOG)
Speaker 2: Qing He, Civil Society, Asia-Pacific Group
Speaker 3: Zhisong Deng, Private Sector, Asia-Pacific Group
Speaker 4: Albana Karapanco, Government, Eastern European Group

Format

Round Table - U-shape - 90 Min

Policy Question(s)

Regulation, competition and innovation: How could regulatory and self-regulatory frameworks help foster more competitive Internet-related markets, a larger diversity of business models, and more innovation? How to enable equitable access to data, marketplaces or infrastructures for fostering competition and innovation on the Internet?

Additional Policy Questions Information: In additional to above selected question, we also want to add one more question: What are the antitrust criteria in your country and how have they been applied to the major platforms?

The workshop intends to address the following issues, challenges and opportunities related to regulation, competition and innovation: There are differences in digital policy, approaches of antitrust regulations and self-regulatory models between countries. Given the interdependence of the digital economy, more importantly, because of the shifting definition of antitrust and governance models as the result of the unique particularities of online markets (two sided or multisided market ) that surrounded the platform economy, the understanding of how the antitrust regulation and self-regulatory framework are applied to internet platforms and markets domestically, how innovation and competitions are fostered locally, and what are the similarities and differences and what has created them are both essential and timely. This workshop will tackle those questions from a global perspective through its regional diverse speakers from the EU, USA, China, India and South Africa. The workshop will address below issues, challenges and opportunities: ● How are competition policy authorities in reacting to the growth of platforms? What methods are used by the regulators to measure market power or abuse of dominance? ● How have antitrust regulation applied to platform markets in your countries/regions? What roles have the platforms played in tackling anticompetitive practices ? How have they (state regulation and self-regulation) help foster more competitive Internet-related markets, a larger diversity of business models, and more innovation? What could be done to improve the current framework? ● What measures are used to enable equitable access to data, marketplaces or infrastructures for fostering competition and innovation in the Internet platform market? What could be done to improve the current measures?

SDGs

1.a
1.b
2.c
4.6
4.7
4.a
5.b
9.1
9.5
9.a
9.b
9.c
10.2
10.5
12.8
12.a
13.3
16.10
16.7
17.16
17.18
17.6
17.7
17.8

Targets: The proposed session aims to develop a framework for collaborative response to the structural issues and challenges of antitrust regulations and self-governance in the Internet markets, and discuss how to ensure the equitable access to data, marketplaces or infrastructures for fostering competition and innovation. Ultimately, the protections of markets, infrastructures, competition and innovation is to serve the provisions of trusted, diverse and equally accessible flows of information, data, knowledges and digital platforms in both developed and developing countries. Such goals are closely linked to the SDG targets selected above such as to "ensure significant mobilization of resources from a variety of sources", "facilitate timely access to food market information", "enhance the use of enabling technology, in particular information and communications technology, to promote the empowerment of women", "develop quality, reliable, sustainable and resilient infrastructure to support economic development and human well-being, with a focus on affordable and equitable access for all" , "ensure public access to information and protect fundamental freedom" and so on.

Description:

The workshop will explain how important the issue of competition policy is in platform regulation and explore the way competition policy authorities in EU, China, USA, India and South Africa are reacting to the growth of platforms. What methods are used by the regulators to measure market power or abuse of dominance? Has regulation fostered more competitive Internet-related markets, a larger diversity of business models, and more innovation? What could be done to improve the current framework? What measures are used to enable equitable access to data, marketplaces or infrastructures for fostering competition and innovation on the Internet platform market? What could be done to improve the current measures? Combing both local experts with a global perspective on antitrust regulations and platform governance, this workshop aims to build an international platform for experts, scholars, policymakers, and legal practitioners from relevant fields to jointly discuss the above important and timely issues, challenges and opportunities on an interdisciplinary and multi-dimensional approaches. Speakers and moderators from The EU, USA, China, Europe, India and South Africa will discuss above questions from diverse geographic and stakeholder’s perspectives. Speakers: Dr. He Qing, Beijing University of Posts and Telecommunications, China Professor Milton Mueller, Georgia Institute of Technology, USA Mr. Jet DENG Zhisong, Dentons China, China Ms. Albana Karapanco, Adviser to the Minister of Finance and Economy of Albania & Visiting Lecturer, Faculty of Law, University of Tirana, Albania Mr. James Hodge, Chief Economist at the South African Competition Commission, South Africa Professor Ajay Shah, Jindal Global University, India Moderators: Dr. Yik Chan Chin, Beijing Normal University Ms. Ioana Stupariu, Central European University Dr. Alison Gillwald, Research ICT Africa Intended Panel Agenda: 1) Setting the scene: moderator, Dr. Chin 3 minutes 2) Short introduction in regard to the antitrust situation in each regions, each speaks for 4 minutes with 3 minute of immediate audience response in the end 3) Policy question discussions amongst speakers 30 minutes moderated by Dr. Chin & Ms. Stupariu 4) Interactive question and answer session, 25 minutes moderated by Dr. Gillwald & Ms. Stupariu 5) Wrap-up, 5 minutes.

Expected Outcomes

1) Develop a framework for collaborative response that includes multi-stakeholders such as academics, business, policymakers and other specialists to provide a meaningful platform that tackles the structural issues and challenges of antitrust regulations and self-governance in the global Internet markets. 2) Facilitate the debate as well as shaping the evolution of legal rules, norms, principles, best practices of antitrust regulations and models of platform's self-governance. 3) Identify differing and common viewpoints regarding measures used or ought to use to enable equitable access to data, marketplaces or infrastructures for fostering competition and innovation in the Internet platform markets. 4) Policy recommendations and key messages report to the IGF community and to the local and regional IGF, academic, NGO and policymaker communities. 5) Publication of antitrust papers in a special issue of the academic journal "Policy&Internet".

1) How will you design the session to ensure the best possible experience for the online and on-site participants? The session will be opened by moderator to provide participants an overview of the policy questions discussed in the session, the professional background of the speakers, and the format of interaction. In the part 2) of the session, the moderators with help of the onsite facilitator will ensure the audience from both onsite and online being able to ask questions to the speakers immediately following their introductions to encourage active participation. In the part 3), the session will move to policy question discussions. The moderators will invite each speaker to express their views on a set of policy questions and guide the discussions amongst speakers and the audience to foreground their common grounds and differences. In the part 4), moderators with help of onsite facilitator will invite questions from both the onsite audience and online participants, the question time will last about 25 minutes in order to provide sufficient interactions amongst speakers, onsite audience and online participants. The moderators will summarise the findings and recommendations and future actions of the panel. 2) If the speakers and organizers will all be online, how will you ensure interactions between the them and the participants (including with on-site participants)? The session has an onsite facilitator at the IGF. And the onsite facilitator will work with the session's moderators and organizers to ensure interactions between speakers, moderators and onsite and online participants. Onsite facilitator and session's organizers will also work with the secretariat and the hosts to ensure the availabilities of the facilities for onsite participations.

Online Participation

 

Usage of IGF Official Tool.

 

Key Takeaways (* deadline 2 hours after session)

The global collaborations of regional or national antitrust regulators are essential to have more collective influence over giant or big internet platforms as well as to maintain diversity of communication otherwise smaller countries will be left behind since what happened in one country can affect consumers in other countries.

Antitrust regulations in the EU and other jurisdictions have shifted more towards to addressing not only the issue of market power but also protection of fundamental rights of consumers and citizens such as right to privacy, access, equality and etc.

Call to Action (* deadline 2 hours after session)

Call for global collaboration amongst regulators and other stakeholders in dealing of anti-trust behavior of big Internet Platforms (for instance in deciding whether to approve the merge of big platforms), especially need to include the small countries which are not home country of those big platforms in collective decision marking processes

Call for a reflection on the evaluation criteria of antitrust behavior of internet platform, including whether antitrust regulation should be or is appropriate to be used to protect the public interests and fundamental rights of individual consumer and citizen; or should alternative regulations be used to address those concerns instead of antitrust regulations

Session Report (* deadline Monday 20 December) - click on the ? symbol for instructions

Summary of discussions and different views by stakeholders:

Q: the antitrust approaches of China, US, South Africa and EU

Dr. Qing He (Beijing University of Posts and Telecommunications) highlighted criteria in the Chinese antitrust regulations in evaluating platform’s monopoly including defining relevant market, determining market power, deciding whether monopoly has competitive effect (i.e. objective justifications of an abuse) and essential facilities doctrine.

Professor Milton Mueller ( Georgia Technology Institute) pointed out that in US. The public has unstable views on the network effect, compatibility relationship and network externalities. The size and scale of the platforms is often a product of network externalities not abusive behavior, and the compatibility or network effects are desired by consumers and antitrust remedies often have no positive impact on them. Citing the example of Microsoft, he argued that what ultimately broke that monopoly was not so much antitrust activity, but the rise of middleware in the form of Java that made browsers possible and that applications could be run independently of the Microsoft operating system. the public need to decide whether to sacrifice compatibility and integration across these platforms for competition or whether people actually want this kind of compatibility.

Mr. James Hodge (Chief Economist, South African Competition Commission) highlighted that for regulators to move from passive to active enforcement of antitrust requires the understanding of business models and consumer behaviors, separation of online and traditional markets, and new or different theories of harms, such as not about exploitation of consumers, but exploitation of sellers or users’ privacy and data. For small country, anti-trust is also a strategic positioning. Regulatory cooperation and collaborations amongst different regulators across sectors and countries is needed at global and national levels in order to have an equal bargaining dynamic between big and small players and regulators. And Foreign anti-trust cases are useful reference for local authority to understand or predict the local platform’s business models

Ms. Albana Karapanco (Senior Associate, Legal Services at PwC Albania) pointed that while all states are pushing towards antitrust regulations. Every country is trying to level the playing field, the EU is more paternalistic than other jurisdictions. In the EU, competition authority moves towards tougher regulation of giant tech companies. Two legislations “Digital Service Acts” and “Digital Market Acts” in complimented with GDPR aim to create open and fair digital markets while protecting fundamental rights. Some cooperation is needed at the global scale. Small country is lagging behind the legislation of competition law.

Q: Differences between Chinese, US, South Africa, and EU approaches in antitrust

Dr. Qing He (Beijing University of Posts and Telecommunications) pointed out the in terms of substantive perspective, there are several differences between US and Chinese antitrust regulations. Abusive conduct: in the US, legislation focuses on illegally maintaining dominate position of the platform; in Chinese, legislation focuses on the abusive conduct itself so that the leverage theory is applied in the Chinese cases. Essential facilities theory is applied in both countries, but Chinese law has defined specially what constitutes essential facilities.

Dr. Jet Zhisong Deng (Senior Partner, Dentons China, China) and Professor Milton Mueller both agreed that there is no significant differences between the Chinese, US or EU antitrust laws and judicial decisions other than procedures (in China, regulatory agency can decide the cases so that it can act swiftly; in USA, antitrust case is tried under the law by judiciary), the main difference is in the changes in the attitudes of governments in antitrust enforcements. Professor Mueller also pointed out that antitrust enforcement can be and often is political, either an assertion of the government's power over industry, as in China, or an attempt by competitors to gang up on a successful rival, as in Europe and the US. Therefore, detaching antitrust enforcement from its theoretical mooring in measures of market power and market definition is only likely to make it more political and less fair. Competition policy requires clear standards of what does and does not foster competition, otherwise it's just arbitrary and political.

Mr. James Hodge (Chief Economist, South African Competition Commission): public interest component is incorporated into S. African antitrust regulation to protect the participation of small business, such as fairness provision in bargaining with powerful buyers; and to ensure S. African companies’ participation in the global economy (whether S. African platforms could be push out from the market). Every country has different procedures and tools such as guidelines, laws or market hearings in their regulations.

Q: How to address the even regulatory power of small countries and big countries in antitrust regulation of giant platforms? Katharina from Georgian regulator and Alison from S. Africa both asked how to cooperation to protect the harm of giant platforms on small countries’ consumers; and the technical challenges in dealing with global players beyond local jurisdictions in enforcing remedies:

Mr. James Hodge and Dr. Jet Deng both agreed that apart from paying fines, many remedies do not work well because companies find ways to work around. Cooperation globally such as mechanism of regular dialogues in international competition is needed to have more collective influence over large platforms otherwise smaller countries will be left behind as well as to maintain diversity of communications. Besides, massive investment in human resources of regulatory agency to understand the business modes and technical issues is also required.

Q: audience asked if antitrust is used as a proxy to address not only market power but also fundamental rights in the absence of common legal framework to regulate other issues such as FOE and content. Ms. Albana Karapanco and Mr. James Hodge both agreed that competition law has shifted more towards to protection of privacy, inequality and access to platform besides regulating market power. While Professor Milton Mueller warned that using antitrust law to address broad "public interest" concerns such as content regulation or human rights is completely inappropriate, as that is not what competition policy is designed to do.