Module 8: 11.00am – 12.30pm (1.5 General CPD Hours)

Saturday 10th September 2022 = Seminar 8 in the Postal Booking Form

Google, Amazon, Facebook/Meta, Apple, etc.

‘Are Big-Tech Online Trading Platforms Actually Anti-Competitive?’

Yes, according to the European Commission, US Dept of Justice and many national regulators.

Competition regulators globally are turning their attention to the major online platforms’ anti-competitive activities.

Late in the day, Governments & Regulators are taking legal action in the US, Europe and China to prohibit large digital platforms from leveraging their dominance into downstream markets by unfair tactics and strategies. This talk examines leading enforcement activities in the US, EU and China to consider whether enforcement agencies are taking similar approaches to constraining market dominance; what new doctrines are being developing to achieve this; and whether antitrust regulators have the right tools available in the fight to control Big Tech’s market dominance.

In this session, International Expert Professor Dermot Cahill will conduct an overview of recent antitrust investigations conducted by EU and US regulators into online platforms’ anti-competitive practices, in particular focusing on the threat to businesses seeking to sell their goods and services on major platforms such as Apple, Google, Amazon, Meta, etc.

Professor Cahill will also consider how similar competition concerns arise in China’s massively growing online trading markets and will examine some of the regulatory solutions being proposed there, as well as the increasing focusing by major competition regulators around the world on tackling the global reach of major online trading platforms anti-competitive activities.

Platforms Explored Will Include:

• Amazon

Their “dual purpose role” (2020).

The EU Commission investigation into Amazon’s use of the “Buy Box” will be examined, whereby Amazon relies on its dual role (as both a platform operator and a retailer on its own platform competing with other independent retailers who use its platform to sell directly to consumers). Also under investigation is Amazon’s collection of information on consumers purchasing habits in order to drive consumers to its most popular sellers, which naturally may distort conditions of competition for less popular sellers on Amazon.

• Google

The €2.8 billion (USD $2.4bn) fine imposed on Google’s online shopping dominance.

Cases filed against Google in the USA shall be considered, including the US Justice Department and more than 30 US States joint filing of a complaint (December 2020) alleging that Google’s (Alphabet Inc.) dominance in the search engine market harms consumers and advertisers by use of unfair restrictive and exclusionary practices. In July 2021, Attorneys General from 36 US States and the District of Columbia brought a new suit against Google over its anti-competitive tactics to extract a 30% commission via its Play Store for Android app users.

• Apple / Facebook

The EU Commission investigations against Meta/Facebook’s (2020) and Apple’s (2022) “gatekeeper” roles.

2022 saw the European Commission accuse Apple of abusing its dominant position by restricting competition in the mobile wallets market on Apple devices, which force Apple app users to process payments exclusively through Apple’s in-app payment processing system. Apple potentially could face severe penalties up to 10% of its annual worldwide turnover

• Booking.com

The German antitrust authorities found Booking.com’s contract with hotels was not anti-competitive because Booking.com’s use of narrow most-favoured nation clauses did not seek to prevent hotels from offering lower prices to consumers via other price comparison websites, apart from the hotels’ own websites, whereas in the UK opposite conclusions were drawn resulting from use of different T’s & C’s and hence the imposition of fines.

• China’s 2021 Guidelines on Dominance in Digital Markets

China’s antitrust authority’s new 2021 Guidelines for establishing market dominance in the digital platforms sector that are not market-share based, shall also be considered in this talk, and its approach to instead conducting substantive assessment of the state of competition (or lack thereof) in digital markets, as well as barriers inhibiting traders access to other platforms arising from digital platforms’ terms of use.

• EU enforcement tools
  • Are they effective, both existing and newly proposed Digital Markets Act?
  • the impact of such enforcement decisions on digital players online commerce strategies.
• US enforcement tools
  • The Competition and Antitrust Law Enforcement Reform Act (2021) focusing on exclusionary conduct.
• Recent enforcement efforts
  • the US Justice Department’s (sometimes with other US States) 2020 complaints against Apple (imposing excessive pricing on app developers) as well as some more recent developments;
  • Google and Meta/Facebook (vis exclusionary practices in online advertising) and the 2021 FTC v Facebook case and the question of whether US antitrust strategy is coherent or piecemeal will be examined;

• China – A “New” Approach?
  • China’s antitrust regulator — the State Administration for Market Regulation (“SAMR”) — published:
    • new 2021 digital antitrust rules
    • and 2022 Anti-Monopoly Law (“AML”)

with one of the pillars dealing with regulating the digital market effectively, being due to come into force on 1 August 2022. The digital antitrust rules and the new AML Act will be discussed to see if they reflect a new approach to asserting antitrust jurisdiction over digital platforms. SAMR fining of Alibaba’s Tmall.com digital platform (2021) for exclusionary practices and other major investigations currently underway will also be examined.

• Are we really For or Against regulating Big Tech?
  • The session will conclude by considering whether East and West have opened a common front against regulating Big Tech.

Speaker

Prof. Dermot Cahill is an expert on international competition law, and his articles regularly appear in top peer review global journals, such as World Competition, Fordham Journal of International Law, European Public Law, European Business law Review, etc. Upcoming major pieces co-authored by Dermot will appear later in 2022 in global journals The Journal of Antitrust Enforcement (international antitrust) and The Federal Law Review in Australia (examining models for using public procurement to combat modern slavery). His co-authored volumes on EU Competition Modernisation and EU Law are published by Cambridge and Oxford University Presses.

Between 2004 and 2009, as General Editor, Dermot successfully revived the Irish Journal of European Law for the Irish Society of European Law. He serves as Examiner in EU Law for the Law Society’s Qualified Lawyers Transfer Test, as well as External Examiner in EU Law at the Kings Inns and for many Universities in Ireland and UK. Dermot held many distinguished Visiting Professorships in France, Australia, USA, China, Nigeria and Malaysia.

Prior to his being appointed as Director of Research Strategies with HelpUsTrade in 2019, an international trade consultancy which delivers procurement governance and institutional capacity-building modernisation projects around the world, Dermot served as Head of Bangor Law School for many years, which he lead into the UK Top 20 Law Schools in 2019 for the first time.

Current HelpUsTrade projects led by Dermot include advising African and Caribbean Development Banks-funded projects for the Governments of Namibia and Barbados. He has worked extensively with Afghanistan’s National Procurement Authority (prior to the Taliban takeover) to establish procurement training curricula and workforce modernisation. In 2021 HelpUsTrade was appointed to the EIB’s Experts Framework to conduct procurement audits on EIB funded projects around the world. Ranked No.1 and No.2 respectively in EIB Spanish and English speaking regions around the world, recognising Dermot’s international expertise in procurement governance and design of pro-competitive Government / public sector working practices.