Abusive Global Platform Dominance or Competition on the Merits?

Abstract

Contrary to mainstream opinion, suggesting that dominant online platforms compete on their own merits and that their abuse of the large-scale accumulation of data should fall under data or privacy laws, this article argues that competition law should investigate whether global platform competition has been established on merit alone and how digital dominance has been strengthened through the downfall of emerging competition (the exclusionary harm) and the excessive combination of individuals’ data (exploitative harm). To frame the theory of competitive harm in a global context, this article compares several of the most recent cases involving digital giants such as Google, Facebook, and Amazon in both pro-active jurisdictions in the European Union, Germany, and India, as well as in less interventionist jurisdictions such as the US, Canada, and the UK. In doing so, the author challenges the existing categorization of abuse of a dominant position, especially self-preferencing and the excessive disclosure of data. Finally, the jurisdictional divide in dealing with global platform dominance captures the convergence built by competition authorities on a common ground approach to online dominance and the dissent from the former. Ultimately, this article advances the constitutional dimension of competition law by recognizing the principle of nondiscrimination and equal treatment in Google Shopping and the principle of autonomous self-determination in Facebook as embedded in quasi-constitutional EU freedoms of free and fair competition for businesses and free choice for consumers.

Keywords: global platforms, online competition, dominance, behavioural discrimination, transnational corporations

JEL Classification: D21, D42, D86