A Duty of Care to Prevent Online Exploitation of Consumers? Digital Dominance and Special Responsibility in EU Competition Law

Abstract

Article 102 TFEU imposes a special responsibility on undertakings with a dominant position. Digital dominance based on data but also on network effects, platforms and first user advantage can lead to extreme inequality in bargaining positions with regard to online services, which can result in unfair treatment of competitors, suppliers and consumers – such as exploitation and discrimination. On line consumers are the focus of this article. In order to tackle competition issues regarding online consumers I propose interpreting the special responsibility of digitally dominant undertakings as a duty of care in their regard. Digitally dominant undertakings may not just be burdened by but also benefit from this approach which increases predictability and trust in online markets. Standards for triggering the duty of care as well as specific points of compliance are proposed here but remain to be specified further.

Keywords: dominance abuse; exploitation; discrimination, duty of care; digital dominance

JEL Classification: K4; L4; O3