Description:

Over the past year, legislators and regulators in jurisdictions including the U.S., U.K., EU, India, China and elsewhere, have leapt into action with proposals intended to increase competition in markets led, and sometimes dominated, by large tech platforms. While the motivation and particulars of such proposals vary widely, key components tend to be prohibitions on self-preferencing behaviors and requirements to effectuate greater data interoperability access for the third-party companies who both rely on the large platforms to reach customers in the greater market, and who, in many cases, directly compete with those same platforms. Such rules could broaden access, increase consumer choice, and incentivize platforms to compete on innovative privacy practices and services.

Yet as jurisdictions begin to finalize and implement such proposals, the tension between competition imperatives and maintaining regulatory interoperability with other jurisdiction grows. This dynamic especially impacts smaller players, for whom navigating bespoke regulatory regimes is more of challenge than it is to larger companies, which could ironically decrease competition via regulatory arbitrage. Similarly, questions are beginning to arise regarding the inter-regional competition implications of such proposals, including whether they can constitute de jure or de facto discrimination against companies headquartered abroad.

Even nations themselves find themselves juggling competing preferences within various arms of government. For example, France ultimately withdrew a competition challenge to Apple’s App Tracking Transparency feature due to its privacy-protective effects that benefit its citizens and the United States recently sent a letter to the European Commission raising serious cybersecurity concerns with its Digital Market Act (DMA) proposal, even as the legislature considers its own digital platform regulations that could have similar effects.

This panel will assess the extent to which recent competition proposals around the world can contribute to internet fragmentation; assess current proposal globally; and provide insight into how to harness the opportunities and mitigate challenges in this moment of great impetus on tech regulation.