Can the ubiquitous power of big tech be curbed using competition law?
With their unprecedented ability to collect data using their infrastructure and platforms in ways that have become indispensable to individuals and companies, big tech’s power now reaches beyond markets into the social, political and personal domains. “Once we understand what kind of power this is, can we then counter the negative effects of that power in the economy and in society using competition law?” asks MOBI(opens in new window) project coordinator Anna Gerbrandy(opens in new window), professor at Utrecht University School of Law(opens in new window) in the Netherlands. “Competition law is a huge instrument. It can levy the highest fines that we have in the European legal system. It’s a big hammer which you can use to limit the power of corporate entities or companies,” she notes. “I wanted to see if we could use that hammer not just to limit negative effects of corporate power but also for other kinds of negative effects.” The scope of the EU’s competition laws is currently restricted to market effects. “We need to broaden the scope to protect against entwined corporate power and political power in the hands of big corporations,” Gerbrandy explains.
A new concept of business power
Understanding the beyond-market power of big tech required an initial review of academic literature. The project team, which included five PhD students and a postdoc, looked at what philosophers such as Aristotle, Foucault and Weber said about power. “We also looked at economic literature, as well as anarchist philosophy and feminist perspectives,” adds Gerbrandy. She has developed a new concept she calls ‘modern bigness’, by mapping the market and non-market effects that arise from the digitalised economy. “This conceptualisation of power from a multidisciplinary perspective is truly novel,” she notes. “It took quite a while and, conceptually, it was a difficult step to make.” “This concept of modern bigness shows how the negative effects on democracy are linked very intricately, very intimately, with corporate power, and if that is the case, then you can use the hammer of competition law.”
Big tech and public utilities
Big tech has penetrated the core of public institutions and utilities, making them reliant on private digital infrastructure for their operations. Digitalisation and platform-based services are also branching out into key sectors such as healthcare, the environment, agri-food, education and transport, which means big tech will become more involved in the delivery of most public services. Looking at how big tech has access to important infrastructures has meant the need to revisit the concept of public utilities, Gerbrandy says. “We are in the process of providing a much-needed update to fit both the current EU concept of public services and the digital power of big tech platforms.”
Big tech’s power to influence citizens
Big tech can influence opinions or political outcomes using political micro-targeting or hypernudging campaigns, making this another important non-market area to evaluate. Other research has shown that big tech can influence news and impact free speech by polarising public discourse. Some of these negative effects are being studied under the EU-funded CORPORATOCRACY project on companies acting politically and ProPA pro-democracy platform for social media accountability. Hypernudging means the highly specific and incremental targeting of one person in order to influence them. MOBI’s work on this has provided breakthrough insights into how this could be an abuse of market dominance provisions under competition law. “You also have to think of a way of protecting the value of media pluralism, as it’s not just about consumers [of news], but societal and democratic values. And you can do that with the concept of modern bigness,” Gerbrandy remarks. “I think it should be made explicit that competition law is also there to protect democracy.” The MOBI project was funded by the European Research Council(opens in new window).
