The Re-Orientation of Digital Platform Regulation: Treading Water or Experimenting?

Abstract

This paper examines the re-orientation of digital platform regulation in the United States and Australia, including legislative proposals and enforcement efforts to deal with the problems of platform power as understood in those jurisdictions. It argues that the initiatives to control platform power in these, as in other jurisdictions such as the EU and beyond, follow a common emergent template of measures focused on identifying conduct violations for specifically designated platforms on the basis of structural criteria of size and concentration. The paper argues that these initiatives are unlikely to provide a magic bullet for addressing the problem of the economic or political power concentration by the digital behemoths. This is because the emergent regulatory templates focus on the symptoms of platform power without investigation of the root causes of the emergence of digital platforms as the basis of production and exchange, and do not seek to address the root cause remedial problems of traditional legal enforcement. More promising approaches would seek to resolve specific problems that arise in the platform ecology, affecting collaborating firms and final users, through innovative remedial design based on the experimentalist disciplines of diagnostic monitoring and recursive adjustment.

Keywords: digital platforms, competition law, market regulation, regulatory private law, experimentalist governance

JEL Classification: K21, K23, K12, L86, K42