Antitrust Über Alles. Whither Competition Law After Facebook?

Colangelo, Giuseppe; Maggiolino, Mariateresa

doi:10.2139/ssrn.3362428

Cited by 8 publications

(4 citation statements)

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“…A behavioural influence is "substantial" when welfare distribution deviates from the state of market equilibrium to a "non-negligible" degree, which is considered to be the case if firms obtain the power to significantly affect the overall market. 57 In principle, the use of Dark Patterns can have an impact of such degree on the market, given sufficient market power, as has already been recognised in the EU Google Shopping decision. 58 This deviation from equilibrium outcomes is "sustainable" if users themselves cannot cope with their cognitive deviations and may not correct the behavioural shortcomings without external intervention.…”

Section: Behavioural Market Failuresmentioning

confidence: 97%

The collective welfare dimension of dark patterns regulation

Di Porto,

Egberts

2023

European Law Journal

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Dark Patterns are interface design elements that can influence users' behaviour in digital environments. They can cause harm, not only on an individual but also a collective level, by creating behavioral market failures, reducing trust in markets and promoting unfair competition and data dominance. We contend that these collective effects of Dark Patterns cannot be tackled by existent laws, and thus call for policy intervention. This article reviews how existing and proposed laws in Europe and the US, namely the EU Digital Services Act and Digital Markets Act as well as the U.S. DETOUR and AICO Acts, address these collective dimensions of welfare and add to existing protection. We find that the novel legislative measures attain that goal to varying degrees. However, the collective welfare perspective may prove useful to both support a risk‐based approach to the enforcement and provide guidance as to which practices should be addressed as priority.

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Section: Behavioural Market Failuresmentioning

confidence: 97%

The collective welfare dimension of dark patterns regulation

Di Porto,

Egberts

2023

European Law Journal

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“…Specifically, the company undertook to abolish broad parity clauses -which as mentioned earlier impede the ability to offer lower prices on competing platforms -but left NPCs intact. 19 Although the Federal 14 For a critical assessment of this theory of harm and the conflicts it causes with the enforcement of the GDPR see Colangelo and Maggiolino (2019). 15 Federal Supreme Court, 23 June 2020, Case KVR 69/19 -Facebook (interim decision).…”

Section: National and International Context Of The Judgmentmentioning

confidence: 99%

The German Federal Supreme Court’s Judgment in Booking.com as a Case Study of the Limitations of Competition Law

Avila

2022

IIC

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The German Federal Supreme Court (BGH) held that the use of narrow price parity clauses (NPCs) between Booking.com and hotels infringed Art. 101 Treaty on the Functioning of the European Union (TFEU), confirming the Federal Cartel Office’s decision. The Supreme Court based its judgment mainly on the following grounds: (1) the use of these clauses restricts intra and inter-brand competition between hotels; (2) NPCs cannot be considered an ancillary restraint in the sense of Art. 101(1) TFEU; and (3) avoiding free-riding through these clauses cannot be considered as a justifying efficiency in the present case under Art. 101(3) TFEU. The present comment focuses on the analysis of the Court regarding (3) and argues that the reasoning in the judgment made conceptual mistakes and statements against settled EU law. The case shows the difficulties the Court had in handling a case where dynamic considerations are important. Therefore, even though the Court may have had valid concerns regarding NPCs, the judgment at hand is a step in the wrong direction regarding the judicial function of guidance of undertakings throughout the economy that wish to comply with competition law.

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“…From a legal point of view, a special feature of the Facebook case is that violations of data protection standards are assessed to constitute an abuse of market power and, thus, a violation of competition law. This raises legal questions about the interface of competition law and consumer protection law as well as about their respective enforcement (inter alia, Colangelo & Maggiolino 2019;Buiten 2019Buiten , 2020Hladjk et al 2019; analysis of this question for third-party tracking introduced by Robertson 2020). In general, Ezrachi & Robertson (2019) show that third-party tracking is a growing industry and has its market power implications: tracking capacity should be ex ante considered in merger review and it may trigger an ex post analysis due to an adverse impact on the consumers.…”

Section: The Facebook Casementioning

confidence: 99%

“…The legal literature controversially discusses whether violations of data protection and consumer protection laws constitute a case for competition policy (inter alia, Colangelo & Maggiolino 2019;Buiten 2019Buiten , 2020Hladjk et al 2019;Robertson 2020), fueled by an extensive reasoning of the FCO that legal precedents subsume considerable power imbalances leading to the en-forcement of illegal business terms under the abuse of dominance law (Bundeskartellamt 2019c: 7-9). From an economic perspective, however, issues of conflicts of laws and their interfaces do not play the central role.…”

Section: Excessive Data Collection and Conditionsmentioning

confidence: 99%

The Economics of the German Investigation of Facebook’s Data Collection

2020

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The importance of digital platforms and related data-driven business models is ever increasing and poses challenges for the workability of competition in the respective markets (tendencies towards dominant platforms, paying-with-data instead of traditional money, privacy concerns, etc.). Due to such challenges, investigations of such markets are of high interest. One of recent cases is the investigation of Facebook's data collection practices by German competition authorities. Our paper, in contrast to the wide stream of legal studies on this case, aims to analyze whether Facebook's practices regarding data collection could constitute an abuse of market power from an economic perspective, more specifically against the background of modern data economics. In doing so we summarize the state of the advanced theories, including influences from behavioral economics, addressing such markets, and discuss four potential theories of harm.

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Antitrust Über Alles. Whither Competition Law After Facebook?

Cited by 8 publications

References 0 publications

The collective welfare dimension of dark patterns regulation

The collective welfare dimension of dark patterns regulation

The German Federal Supreme Court’s Judgment in Booking.com as a Case Study of the Limitations of Competition Law

The Economics of the German Investigation of Facebook’s Data Collection

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