Digital Sovereignty and Big Tech Regulation:

Beyond the Consumer Welfare Standard

Abstract

The online platforms of Big Tech such as Amazon, Google and Facebook have gained dominant market positions and provoke widespread public concern about losing sovereignty over public values in the face of concentrated digital markets. This paper evaluates whether antitrust law under its current consumer welfare standard of protecting consumers through protecting the efficiency of the competitive process is suited to address these concerns. The analysis concludes that the market concentration in online markets can only be suitably addressed if the goal of antitrust law is widened to focus on establishing fair competition rather than market efficiency. Although specific structural aspects of online platforms inherently lead to monopolistic markets, it is not unlawful under current antitrust practice to take advantage of such elements. A counter proposal to the consumer welfare standard should characterize the power of online platforms as infrastructural power is necessary for civil engagement and emphasizes multilateral approaches to regulation.

Keywords: Big Tech, Regulation, Consumer Welfare Standard, Digital Sovereignty, Online Platforms

Contents

1 Introduction 1

2 Defining a goal for antitrust 3

3 The economic structure of online platforms 4

3.1 Network Effects 5

3.2 Lock-In Effects 6

3.3 Big Data 7

3.4 Zero-Price Markets 8

3.5 The insufficiency of the Consumer Welfare Standard 9

4 Regulating Big Tech – an infrastructural approach 10

5 Conclusion 12

6 References 14

Introduction

After decades of economic deregulation, “Antitrust is sexy again” (Shapiro, 2018, p. 714) as the economist Shapiro bluntly puts it in a study concerning the increased industry concentration of the American economy. Without doubt, we live in an age of giant internationally operating corporations and while there was “Big Oil”, “Big Steel” and “Big Finance” in the past, we are now in the age of “Big Tech”: Amazon, Apple, Google, Facebook and Microsoft have shaped the last decades of commerce, communication, information and entertainment. Their innovations have contributed to making the internet an integrated part of everybody's daily life. Society has increasingly moved important social and economic areas into the digital realm and the online platforms of Big Tech provide the infrastructure for a major share of economic and social activities. Google obtains near-all shares of online searches, Amazon controls almost half of all e-commerce, Apple’s and Google’s operating systems iOS and Android are installed on the largest share of digital devices and Facebook owns six of the top ten social media platforms (Dayen, 2017, p. 1). Despite the range of benefits they provide society with, their size has increasingly raised concern among politicians, competitors and consumers due to a number of negative externalities. Big Tech is accused of suppressing innovation, driving out competition, exploiting consumers’ privacy and interfering with democratic institutions as in scandals like the Cambridge Analytica leak and the influence on the 2016 United States Presidential election. Governments are becoming increasingly aware of their critical dependence on the online platforms of Big Tech with the European Union and the United States leading the way (see European Commission, 2020; US House Report, 2020) and debates have emerged around the need to safeguard digital sovereignty to ensure political authority over public values and rights online. Digital sovereignty describes “the idea that states should reassert their authority over the internet and protect their citizens and businesses from the manifold challenges to self-determination in the digital sphere” (Pohle & Thiel, 2020, col. 1). This paper argues that the real challenge to digital state sovereignty is found in the market power of very few corporations that provide the infrastructure for a major share of economic and social activities with increasing pervasive power over social processes. Discussing digital sovereignty necessarily has to start with a discussion about the dominance of Big Tech that are the source of citizens’, competitors’ and governments’ concerns about losing authority and the right to self-determination in the digital realm.

At the heart of these concerns lies a policy dilemma central for the following debate around online platforms. Big Tech has not done anything particularly unlawful under the current antitrust doctrine and has not been condemned in the past by US authorities, but has provoked widespread demand for regulation. So if online platforms have not done anything wrong under the current antitrust law, on what ground can institutions justify their regulation? Is the current paradigm in antitrust law unsuitable to capture the criticized social harms? Before any institution decides to regulate some of the most innovative and successful companies of the 21^st century, it is crucial to precisely evaluate the supposed gains from regulation. An economically motivated cost-benefit approach as it is manifested in the current practice of antitrust law would evaluate whether the economic losses of tech market concentration outweigh the benefits. If the discussion however is motivated by social harms like privacy, decreased quality and systemic power, it is questionable if antitrust law is suited to address these concerns, a question brought forward in this paper.

Section Two will unroll the historic emergence of the current paradigm in antitrust practice, the consumer welfare principle, with regards to the relevant interest groups harmed by market power and the economic metric to measure the need for regulation. Section Three will lay out the theoretical foundations to controlling platform power by identifying the main sources of its power. Applying the guideline of the consumer welfare principle will reveal whether these structural elements create net losses or net gains for particular sides of the market. I will conclude that specific structural elements inherently lead to concentrated markets, yet it is currently not unlawful to take advantage of such elements. Section Four will develop a counter proposal to the consumer welfare principle in an attempt to address the infrastructural importance of online platforms for social and economic processes. Classifying important online platforms as natural monopolies can be a potential solution to non-price related competition concerns. I will argue that concentrated online markets can only be suitably addressed if the goal of antitrust law is widened to include social harms and averts from efficiency as the main objective of antitrust.

Although Big Tech has captured dominant positions in nearly every international market, foreign governments are limited in their means to regulate them since all major online platforms are legally located in the US. Digital sovereignty in general is a concept very challenging to geo-political claims given the open-access nature of the internet that operates beyond territorially based sovereigns. I will argue that effective and fair regulation of online platforms demands extensive multilateral cooperation as it would be a controversial precedent for any non-US authority to demand structural regulatory changes for US firms. The US has higher regulatory power which is why the following discussion about structural reforms will first focus on the capabilities and goals of US Antitrust law, before discussing the issue from a perspective of the European Union and multilateral cooperation.

Defining a goal for antitrust

Competition has always been a driving factor for all economic activity. It incentivizes firms to produce better and more innovative products than its rivals. Empirics show that competitive markets produce better outcomes and higher consumer welfare (Whish & Bailey, 2015, p. 16). A lack of competition in the form of monopoly power will call governments to intervene to prevent any market inefficiencies. The crucial question to determine is when governmental regulation will provide better outcomes and when they should let the free market correct these failures itself. An OECD competition guideline concludes that countries should assess the quality of regulations on whether they “ensure that the benefits of the regulation outweigh the costs” (OECD, 2019, p. 17). This broad definition misses on two important aspects relevant to clarify: who are the relevant interest groups that should benefit from regulation and what is an appropriate metric for measuring anticompetitive harm? In sum, what should be the goal of antitrust legislation?

Modern antitrust law sets its goal on implementing the so called consumer welfare standard (Lao, 2019, p. 782). This principle refers to consumers as the relevant interest group and prices as a suitable measure to identify consumer harms. The standard was first introduced in the 1970s by the neoclassical scholars of the Chicago School and puts the focus of antitrust practice on protecting consumers through the protection of the competitive process (Khan, 2016, p. 720). In the words of Robert Bork, an influential scholar of the Chicago School, “[t]he only goal that should guide interpretation of the antitrust laws is the welfare of consumers […]. In judging consumer welfare, productive efficiency, the single most important factor contributing to that welfare, must be given due weight along with allocative efficiency" (Bork, 1978, p. 7). Bork defined consumer welfare not as the sole gain of consumers but as the sum of all welfare, enjoyed both by consumers and producers which is best described as total welfare, in which a situation is efficient if it produces net gains, independent of who enjoys the surplus (Hovenkamp, 2019, p. 101). Apart from the Chicago School’s narrow, orthodox definition, a wider accepted interpretation defines the main goal of the principle as solely prohibiting conduct that is harmful for consumers (Lao, 2019, p. 773). Suppose two firms merge and the consumer prices rise due to the increased market power but the firms can save production costs (Hovenkamp, 2019, p. 104). Then the situation will still be efficient under Bork’s definition if the saved production costs exceed the raised consumer prices resulting in a net gain for the whole economy. Under the more mainstream definition however the merger would be unjust because consumers lose as a result of the higher prices. US Antitrust Law is argued to interpret the consumer welfare standard in the favour of Bork’s neoclassical definition (Khan, 2016; Lao, 2019), which means that modern antitrust law set its goal on protecting consumers through protecting the efficiency of the competitive process. Partly because they are so easy to measure, effects on price, output and efficiency have become the main drivers of antitrust enforcement (Khan, 2016, p. 721). So proving anti-competitive behaviour today in general requires showing harm to consumer welfare, in the form of price increases or efficiency restrictions.

Now is the consumer welfare principle a suitable guideline for including the criticized social harms? If all anticompetitive conduct is measured through consumer prices, output and market efficiency, the principle cannot include all interests. Antitrust policy has been criticized for ignoring other aspects of consumer interest like privacy, protecting small businesses or limiting corporate influence (Hovenkamp, 2019, p. 129). Melamed and Petit (2019, p. 743) conclude quite fittingly, that these flaws of the consumer welfare principle are nowhere better seen than in the regulatory challenge of online platforms.

The economic structure of online platforms

Online platforms are not simply a type of digital business model, they are rather the central organizational form for the digital economy (Cohen, 2017, p. 135). They have revolutionised almost any market over the last few decades resulting in unmatched commercial success. They have disrupted a range of established business models from book stores to shopping centres and print media. But why are Amazon, Google, Apple, Microsoft and Facebook so dominant? The answer lies in the underlying structural elements of online platforms, elements that Barwise and Watkins (2018, p. 25) classify as winner-take-all characteristics. Those characteristics are responsible for the high concentration observed on the platforms of Big Tech, characteristics that will naturally always promote high levels of concentration. If those winner-take-all elements apply to all platform business models, it is unreasonable to limit the discussion of suitable regulation only to the five platforms of Big Tech. Any competitor that displaces one of Big Tech’s platforms would profit off of the same winner-take-all dynamics and the same scenario would result that can be observed today. The following section will analyse four structural elements of power that I regard as responsible for driving out competition and enabling highly concentrated online markets, namely network effects, lock-in effects, Big Data effects and zero-price effects. Examining the roots of structural power will reveal whether the consumer welfare principle is able to regulate this form of power when focused on efficiency and prices.

Network Effects

Most online platforms are multi-sided markets. That means, they create value by matching different market sides with complementary needs with each other (Moore & Tambini, 2018, p. 26). Amazon for example connects customers searching for a certain product with compatible sellers. Value creation in multi-sided markets relies on network effects that can be differentiated in two types of effects. Direct network effects occur when the value of one group of users depends directly on the increasing number of users on the other side. Indirect network effects occur when one group of users indirectly attracts more users on the other market side (Moore & Tambini, 2018, p. 26). Network effects can be compared to an extreme case of demand-side economies of scale (Shapiro & Varian, 1999, p. 179). There are high fixed costs, the time invested in obtaining a critical mass of users on the platform until a certain dominance is reached and very low marginal costs once the platform has gained popularity (Moore & Tambini, 2018, pp. 27–28). The effect is particularly dominant on social media platforms like Facebook. The value of Facebook is defined by its ability to connect users with their friends. If all friends decide to switch to another social media platform, Facebook loses value as indirect network effects are no longer working in the platform’s favour. Network effects are maximized when all consumers coordinate on a single online platform (Caillaud & Jullien, 2003, p. 203). In fact, network effects push the market to coordinate on one platform only, promoting monopolistic power. Once a platform dominates a particular market, the network effects become self-sustaining and the amount of users on one side of the market will naturally attract users on the other side, creating a self-sustaining monopoly (Moore & Tambini, 2018, p. 28).

As a result, platforms with strong network effects necessarily tend towards very concentrated markets and can be powerful entry barriers for competitors, but the effect itself is highly beneficial for consumers.

Lock-In Effects

A commonly raised objective to platforms like Apple is the difficulty consumers face when switching between competing products. If an iPhone user wants to switch to a phone with an Android operating system, he will face switching costs in the form of brand specific training due to the need to learn a new operating system and database costs due to converting data into new formats (Shapiro & Varian, 1999, p. 117). Apple’s operating system iOS is installed exclusively on Apple products and its App Store offers only apps compatible with apple products (US House Report, 2020, p. 334). Hence files, apps and data cannot easily be transferred to other operating systems and the operating systems are not compatible with each other, so users will have to learn how to use the new operating system. Products in the tech market are specifically designed to produce such a Lock-In Effect (Moore & Tambini, 2018, p. 29). If users decide to switch to another product, they will face costs of switching from one brand to another. This “locks” users to the company they have decided to first purchase a service from.

Lock-In Effects are especially strong when platforms start to vertically integrate across other lines of services. Consider Amazon, who in addition to being a successful retail platform, is now a book publisher, payment service, film producer, logistics firm, manufacturer, clothing designer and counting (Khan, 2016, p. 754). Whenever platforms create infrastructural systems that are nearly impossible to avoid, consumers and more importantly competitors are locked into using Amazon's infrastructure. Competing retailers may be forced to use its delivery service and media companies to use its market platform despite being rivals in another business sector (Khan, 2016, p. 754). Market efficiency is likely to suffer from such structural dominance because it creates conflicts of interest among Amazon and its competitors and leads to inefficient allocations, because consumers are blocked from making fully free purchasing decisions due to switching costs and lock-in effects.

Big Data

In the world of online platforms, data serves as its currency. Online providers track their users’ activity to collect information about behaviour, location and demographics through the use of cookies (Lerner, 2014). This data is used to improve the quality of service, for example in the form of more targeted search results. Commercial value is created by sharing the personal data with third-party advertisers. Certain personal characteristics including interests, behaviour and location enable the showing of targeted ads compatible with each user’s interest. The greater those advertising revenues are for the platform, the greater the competition for users on the market will be in order to generate more data, creating incentives to improve the quality of service and thereby promoting innovation (Lerner, 2014, p. 15). The ability to monetize data hence creates significant consumer benefits, because it allows companies to provide high quality services at zero cost (Lerner, 2014, p. 15).

For competitors however, data can form a powerful entry barrier. Potential rivals are disadvantaged in the moment of entering the market through the missing amount of data relevant for success and quality to start the platform. The acquisition of the Israeli navigation software app “Waze” by Google in 2013 illustrates the dilemma well. Waze was unable to compete with Google Maps in the United Kingdom market for mapping services, because the amount of data Google possessed formed an unconquerable entry barrier for its competitor Waze. “[T]he more users supplied Waze with data on traffic conditions, the better Waze’s turn-by-turn application became, and the more likely Waze would attract additional users. But this presented a chicken-and-egg dilemma. Users would not be attracted to mapping sites unless the quality was good, and the quality won’t be good absent a sufficient amount of data from users“ (OECD, p. 9). One could encounter that data is not the only parameter driving success and a firm with a better business idea would quickly drive out the market incumbent, because consumers would use the qualitative better business. This assumption does not hold in online markets, where the possession of Big Data correlates strongly with quality. The competitive advantages of Waze business model consisted in real-time mapping with fresh and crowd-sourced data, features that made Waze the mapping app with greater quality in comparison with Maps and would have created a self-sustaining process of dominance (US House Report, 2020, pp. 236–237). But in order to collect data and establish quality, the market had to be empty beforehand which is seldom the case. There are two implications for the consumer welfare principle from the way Big Data works. It creates significant consumer benefits as it is in major parts responsible for the innovative process and quality and allows the company to produce at zero costs. On the other side, it constitutes a considerable entry barrier for competitors as Big Data promotes monopolistic market tendencies.

Zero-Price Markets

As described above, data accumulation is the reason why firms are able to provide services at zero-price. Opening a Facebook account, searching for a product on Amazon or browsing the web with Google, those are valuable services that are expected to work in favour of consumers, because they are free. Still, consumers have called out those firms for privacy violations and unfair business practices.

Zero-price markets impose a great challenge to the consumer welfare standard, where consumer harm is measured through prices. Proving the need for regulation in zero-price markets requires identifying non-monetary costs (Newman, 2014, p. 165). And in the online market, costs come in the form of data. There is a reason why economists are generally so prone to prices. They give information about the quality, scarcity and demand of a service. And in the absence of prices, consumers face problems acquiring information and market allocations will be less efficient than in a positive price model, because consumers lack information (Newman, 2014, p. 182). Firms need to create incentives for users to voluntarily trade in their data and provide free services in return. Studies cited by Newman (2014, p. 167) report that a large share of consumers are in fact willing to “pay” with their data if they can profit from it. So if the benefits offered in exchange exceed the total costs in the form of less privacy, consumers will gain from a trade they voluntarily opt into (Newman, 2014, p. 173). But consumers still complain about privacy concerns despite voluntarily giving data to such companies. So why would consumers agree to a trade they do not really want? In the absence of comparable competition, consumers are left with no other valuable choice than opt into such a trade. The price-centric framework is unable to represent the structural dominance of Big Tech that distorts consumer’s views on alternatives. If there are no real alternative platforms, then there is no real trade as consumers have no other choice than giving up their data to the dominant firm.

If costs in the online market come in the form of data, and the proclaimed goal of antitrust is to lower consumer costs, then an effective regulation would minimize the cost of having to exchange private information in return for online services by promoting competition (Newman, 2014, p. 198). This would require an extension of the consumer welfare standard from prices towards a more general metric that includes non-monetary consumer harms.

The insufficiency of the Consumer Welfare Standard

The consumer welfare standard in sum failed in its own terms. It was unable to ensure competition in an environment where efficiency and consumer gains are unsuitable to capture the negative effects of decreased competition on consumers. It was unable to respond to natural market entry barriers and subsequently prohibit the rise of Big Tech to infrastructural importance. It has failed in representing non-price harms by measuring the amount of suitable competition predominantly through a price-output relation. The previous analysis has shown that prices can be an unsuitable metric to represent consumer values like privacy, quality and variety. It has further shown that network effects and Big Data are powerful entry barriers, responsible for driving out competitors. News firms can only enter a market in the absence of a monopolist. We also have seen that data is not harmful per se. Instead, it is the lack of competition that produces harm when consumers have no other choice than to trade in private data for receiving a service of the desired quality. The same applies to lock-in effects. They are not harmful for competitors and consumers per se, it is the infrastructural power that enables unfair business practices and unfree consumer choices because the latter are then unable to avoid the dominant platform. Now, how can one induce much needed competition into an infrastructural system that inherently drives out competition? Simply taking advantage of inherent anticompetitive elements is not the same as violating US antitrust law (Lao, 2019, p. 776). The unsuitable goal of antitrust enforcers is partly responsible for this non-violation. A standard focused on promoting economic efficiency measured through consumer prices cannot detect the anticompetitive force of entry barriers and non-price effects to their full extent. Hence, a goal is needed that specifically focuses on maintaining the competitive process, even if it requires institutional forces to induce competition.

To target the infrastructural power of online platforms, the last section will discuss a counter proposal to the consumer welfare standard brought forward by Vaheesan (2010), Rahman (2018) and Khan (2016) that favours promoting fair competition over efficiency. Varian and Shapiro (1999, p. 302) proposed that direct governmental control would be advisable in situations where a monopoly will not likely be dissolved by new market entries or technological innovations, a situation that economists refer to as a natural monopoly. The previous analysis proved that this ought to be the case for most online platforms, where successful market entries seldom occur, and consumers are subject to the terms and conditions of unavoidable private corporations. Hence to restrict the infrastructural power, governmental regulation is needed to reinforce competition.

Regulating Big Tech - an infrastructural approach

The internet in the 21^st century is by all means a necessity to successfully participate in social and economic activities. Digital platforms as its main form of organization have established themselves as essential infrastructure for most digital transactions. To address this essential structural power, Vaheesan, Rahman and Khan propose a regulatory framework in which dominant online platforms would be regulated as natural monopolies. The idea behind this approach is to publicly manage network industries that have become too important to be controlled by market forces (Khan, 2016, p. 798). According to Rahman (2018, pp. 236–237) natural monopolies exhibit three factors: they offer essential services, possess economic features that naturally lead to monopolistic markets and makes users vulnerable to abuse by the monopolist. The novelty in the infrastructural approach is that it accepts that online platforms inherently lead to monopolies and imposes sharing requirements on the monopolist to force competition into the market (Vaheesan, 2010, p. 911). The online platform would be forced to grant its competitors easy access to its data and its network effects, “unlock” consumers and grant them access to qualitative alternatives. It would reinforce the free market and correct the anticompetitive structure of online platforms by forcing them to disable the features that make them monopolies. Such a proposal sounds revolutionary and hard to realise, but regulating infrastructures controlled by arbitrary corporate power is not a particularly new phenomenon. In the 19^th century era of industrialization, new technologies including the railroad, electricity and gasworks emerged and rapidly became the backbone of all economic and social activity - a transformation that introduced a new social prosperity dependent on the will of private corporations (Rahman, 2018, p. 237). Private actors holding the power over necessary infrastructure leave the public will at the mercy of the corporate interest. Securing the democratic process, economic and civic liberty means regaining public control over infrastructures that are of public interest. An infrastructural approach has never been applied to the internet economy (Khan, 2016, p. 802), but might be the only option to reinforce competition into a monopolised market controlled by few private actors. For a country concerned with digital sovereignty in the age of Big Tech, the infrastructural regulatory approach to online platforms would minimize involuntary corporate influence over public interest and re-establish fair competition.

Consequently, the question of which entity is authorized to impose such a regulation arises. As mentioned above, all Big Tech platforms are situated in the United States and it would be controversial for any non-US government to impose structural regulation on US companies. The distinct economic structure of online platforms, however, disables any national attempt for regulation seeking to regain digital sovereignty as solutions not coordinated multilaterally potentially threaten the open structure of the internet and consequently the consumers’ benefits. The European Commission (2020), for example, pledged to develop a Digital Single Market strategy as a main public policy objective for 2019-2024 which aims to promote competition in the online platform market and strengthen digital sovereignty. But how can a non-US country single-handedly enforce competition back into a market that inherently drives towards natural monopolies without performing far-reaching structural changes? The EU’s objective to guard their public values in the face of heavy dependence on the good will of a foreign platform infrastructure acting beyond their jurisdiction is a reasonable aim, but the regulatory tools necessary to reach fair competition are beyond the scope of the EU’s jurisdiction alone. A market that inherently drives towards monopolies and acts beyond national jurisdiction in unprecedented ways requires new regulatory approaches under a new paradigm that is capable of addressing its distinct features. Only through multilateral cooperation and development of norms and rules for fair competition can states regain control over public values in the digital realm.

Many regulatory approaches brought forward in this context start with the question if the free market will provide us with a platform infrastructure in the best interest of society. The question, however, should never be whether we believe corporations will act in its best interest, because they would otherwise be driven out of the market, it is rather the problem that the public interest should not ever be subject to the arbitrary will of corporate actors to such an extent. Digital sovereignty is a profound concept in this regard and invites necessary discussion about individual’s rights and values in the digital realm in the face of dominant platforms. To recognize the importance of an active state to make companies that possess essential infrastructure serve society and not the other way around is quite possibly the most important insight of my analysis. Proposing specific regulatory tools and their effects on competition, welfare and innovation is beyond the scope of this paper, but I hope to have shown that my contribution to the discussion lies rather in developing the right methodological approach to regulation. Leaving behind the efficiency approach that disregards competition and developing an infrastructural approach that includes the absence of competition as a threat for consumers allows us to regulate Big Tech as what they are: infrastructural platforms with too much power over the market and the public interest.

Conclusion

In an attempt to safeguard public values and economic competition, regulatory authorities are now in fact increasingly investigating the market dominance of Big Tech following negative public attention. The market dominance of Big Tech and increasingly also Chinese tech companies has raised concerns, specifically in the EU, about their economic autonomy (Pohle & Thiel, 2020, col. 20). The European Union was the first authority to sanction one of the Big Tech online platforms for infringing EU antitrust law and has fined Google three times in the past three years for over €8 billion concerning the pre-installation of Google Search on Android (European Commission, 2018), abusive practices in online advertising (European Commission, 2019) and illegal market advantage for Google Shopping (European Commission, 2017). The United States House of the Judiciary has followed suit with a sixteen-month long investigation about the anti-competitive behaviour of Google, Apple, Facebook and Amazon (GAFA) initiated by the Democratic Lead Subcommittee of Antitrust (2020) upon which they released their findings in October 2020, which I have cited throughout the paper. The report explicitly stated to have found evidence of monopolisation and monopoly power on GAFAs online platforms (US House Report, 2020, p. 11). The general political trend currently seems to lead towards possible regulation for Big Tech. Governments are increasingly aware of the importance of political authority over digital infrastructure for securing public values. Van Dijk has argued that the neoliberal principles that are well represented in the US consumer welfare standard respectively differ from the Western European market model which has a narrower focus on actual consumer welfare rather than efficiency, but that the current political objective of the EU as expressed in the Digital Single Market strategy seem to mischaracterize the market dynamics of the digital realm and the importance of true competition for consumer welfare. Multilateral focus should lie on protecting the competitive process and evaluating whether the current paradigm in regulation is able to fully address the critique on Big Tech mentioned above.

It remains to say that finding the right principle for guiding antitrust law through the technological era is first and foremost a political choice. “Competition policy does not exist in a vacuum: it is an expression of the current values and aims of society and is as susceptible to change as political thinking generally” (Whish & Bailey, 2015, p. 20). It obliges public choice, which interest group they aim to protect and what kind of social harms they acknowledge. Defining a goal for antitrust law is not something to be left to antitrust specialists, it involves a public discussion and should be shaped by society’s interests. An answer to these questions cannot be given by economic calculations and theorems, it requires moral judgements and those typically do not deliver indisputable answers. If the state and the international community regard the consumer welfare standard as an unsuitable goal for the digital era, then antitrust law should be capable of reacting in line with public interest.

6. References

Bork, R. H. (1978). The antitrust paradox: A policy at war with itself. Basic Books.

Caillaud, B., & Jullien, B. (2003). Chicken & Egg: Competition among Intermediation Service Providers. The RAND Journal of Economics, 34(2), 309.

Cohen, J. E. (2017). Law for the Platform Economy. UC Davis Law Review, 51(1), 133–204. Retrieved from https://lawreview.law.ucdavis.edu/issues/51/1/
Symposium/51-1_Cohen.pdf.

Dayen, D. (2017). Big Tech: The New Predatory Capitalism? The American Prospect. Retrieved from https://prospect.org/health/big-tech-new-predatory-capitalism/.

Directorate for Financial and Enterprise Affairs. (2016). Big Data: Bringing Competition Policy to the Digital Era: Background note by the Secretariat (No. 14). OECD. Retrieved from https://one.oecd.org/document/DAF/COMP(2016)14/en/pdf.

European Commission. (2017, June 27). Antitrust: Commission fines Google €2.42 billion for abusing dominance as search engine by giving illegal advantage to own comparison shopping service [Press release]. Retrieved from https://ec.europa.eu/cyprus/news/20170627_en.

European Commission. (2018, July 18). Antitrust: Commission fines Google €4.34 billion for illegal practices regarding Android mobile devices to strengthen dominance of Google's search engine [Press release]. Retrieved from https://ec.europa.eu/cyprus/news/20180718_2_en.

European Commission. (2019, May 20). Antitrust: Commission fines Google €1.49 billion for abusive practices in online advertising [Press release]. Brussels. Retrieved from https://ec.europa.eu/commission/presscorner/detail/en/IP_19_1770.

European Commission. (2020). Shaping Europe's Digital Future [Press release]. Luxembourg. Retrieved from https://ec.europa.eu/info/sites/info/files/
communication-shaping-europes-digital-future-feb2020_en_4.pdf.

Hovenkamp, H. J. (2019). Is Antitrust's Consumer Welfare Principle Imperiled? Faculty Scholarship at Penn Law, 45, Article 1985, 101–130. Retrieved from https://scholarship.law.upenn.edu/faculty_scholarship/1985.

Khan, L. (2016). Amazon's Antitrust Paradox. Yale Law Journal (126), 710–805. Retrieved from https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
article=5785&context=ylj.

Lao, M. L. (2019). No-Fault Digital Platform Monopolization. William & Mary Law Review, 61(755). Retrieved from https://ssrn.com/abstract=3368499.

Lerner, A. V. (2014). The Role of 'Big Data' in Online Platform Competition. Retrieved from https://ssrn.com/abstract=2482780.

Melamed, A. D., & Petit, N. (2019). The Misguided Assault on the Consumer Welfare Standard in the Age of Platform Markets. Review of Industrial Organization, 54(4), 741–774.

Moore, M., & Tambini, D. (Eds.). (2018). Digital dominance: The power of Google, Amazon, Facebook, and Apple. Oxford University Press.

Newman, J. M. (2014). Antitrust in Zero-Price Markets: Foundations. University of Pennsylvania Law Review, 164, 149–206. https://scholarship.law.upenn.edu/cgi/
viewcontent.cgi?article=9504&context=penn_law_review.

OECD (2016). Big Data: Bringing Competition Policy to the Digital Era: Background note by the Secretariat (14). Retrieved from https://one.oecd.org/document/DAF/
COMP(2016)14/en/pdf.

OECD (2019). Competition Assessment Toolkit: Volume 2: Guidance, 2. Retrieved from www.oecd.org/competition/toolkit.

Pohle, J., & Thiel, T. (2020). Digital sovereignty. Internet Policy Review, 9(4). Retrieved from https://policyreview.info/concepts/digital-sovereignty#comments.

Rahman, K. S. (2018). Regulating Informational Infrastructure: Internet Platforms as the New Public Utilities. Georgetown Law and Technology Review (2), 234–251. Retrieved from https://ssrn.com/abstract=3220737.

Shapiro, C. (2018). Antitrust in a time of populism. International Journal of Industrial Organization, 61, 714–748.

Shapiro, C., & Varian, H. R. (1999). Information rules: A strategic guide to the network economy. Harvard Business Review Press.

US House Report. (2020). Investigation of Competition in Digital Markets: Majority Staff Report and Recommendations. Subcommittee on Antitrust, Commercial and Administrative Law of the Committee on the Judiciary. Retrieved from https://judiciary.house.gov/uploadedfiles/competition_in_digital_markets.pdf.

Vaheesan, S. (2010). Reviving an Epithet: A New Way Forward for the Essential Facilities Doctrine. Utah Law Review, 3, 911–962. Retrieved from http://ssrn.com/abstract=1567238.

Vaheesan, S. (2018). The Twilight of the Technocrats’ Monopoly on Antitrust? The Yale Law Journal Forum, 127, 980–995. Retrieved from https://www.yalelawjournal.org/pdf/
Vaheesan_ir9dchg8.pdf.

van Dijck, J. (2020). Governing digital societies: Private platforms, public values. Computer Law & Security Review, 36.

Whish, R., & Bailey, D. (2015). Competition law (Eighth edition). Oxford University Press.