Digital markets have come into sharp focus for competition authorities worldwide over the last decade, but never has the spotlight been brighter than in 2019. Platforms operated by tech giants like Google, Apple, Facebook and Amazon (GAFA) have taken on a pervasive role in everyday life and reshaped the modern economy.
At the same time, public concern over these platforms’ apparently unassailable market power, function as gatekeepers to other businesses, and the impact this may have on customers has led to competition law scrutiny around the globe. But it is not just these pure tech businesses that have been in focus. As digital channels become critically important for conventional businesses, they too have faced increasing scrutiny of their digital activities from competition authorities.
The competition law considerations for digital markets are highly complex. As competition authorities have been called upon to fill the regulatory lacuna of the internet, they have grappled with how to best apply their existing tools to markets which are fast-moving, often multi-sided with powerful network effects, and where in many cases, services are offered for free. Following a period of increasing competition law harmonisation, particularly among EU member states, divergence is now increasingly evident as each national agency experiments with ways to address these common challenges in their own way, in the absence of an agreed way forward. Enforcers still aim for harmonisation and consistency but in many cases the reality is different.
While many investigations are still only in the early stages, this potential for significant divergence in methodology and outcomes creates unpredictability for business that may spill over into other sectors. It has sometimes felt as though competition law is groaning under the weight of the digital world. Here we have summarised five of the key themes out of recent enforcement and policy work from competition authorities’ around the world.