Periodic Reporting for period 4 - MOBI (Modern Bigness : Challenges for European Competition Law)
Periodo di rendicontazione: 2024-07-01 al 2025-06-30
Digital technology is everywhere and integrated into our daily lives. This makes the power and influence of big technology corporations undeniable. ‘Big Techs’ have contributed significantly to the digitalization and datafication of society and the economy. Big tech firms are at the forefront of the development of AI capabilities and are branching out into robotics, health care and education. Much innovation in the current digital age comes from these conglomerates, and if it doesn’t, it often gets snapped up by them. The Big Techs also influence how citizens receive information and news through social media platforms for example, and also have an impact on the feasibility of quality journalism. All of the above has direct and indirect influence on our interactions, our democracy and fundamental rights as well as on markets and competition.
In European competition law, which is part of European law mor generally - we deal with the effects of market power. There are rules limiting how companies-with-market-power can wield that power: they are not allowed to abuse their market power in a way that negatively impacts competition and the market.
The project ‘Modern Bigness’ however, starts from the idea that the powerful tech-companies represent something new. We call this ‘Modern Bigness’, because it is also new in comparison to the concept of ‘Bigness’ that, mostly in the USA, was used a century ago to combat powerful corporations. This project focuses on big techs power as more-than-market-power which also has negative effects outside the market: on democratic processes, on fundamental values, on our personal lives. We focus on how, when looking at the business-models of the big tech companies (this means: how they make money and profits), this distinction between market and non-market is not really relevant. From the business-perspective it is not important either whether a user of a platform is a consumer, a citizen, a family-member, or whether it is a political party, or a civil society organization. This means that the impact of Modern Bigness on market and non-market values is difficult to disentangle. And that leads to complex challenges for society and the law. European society is based on the values of an Open Society, built on the tenets of the rule of law, and encompasses values of personal autonomy, equality and solidarity. If these tenets and values are negatively affected by the powerful corporate power of big tech platforms, the question – for the law – is whether it can and should (and how) respond.
This project aims to understand the power of big tech companies better. And it answers how European competition law could respond to these more tangled effects, instead of European competition law focusing only on the market sphere.
The main objectives of this project are:
- We will develop an original theory to capture and conceptualize the new phenomenon: a theory of Modern Bigness.
- We will look at hypernudging (or microtargeting): the use of methods to influence decision making of users, who can be a consumer or a citizen (or both). And at how competition law can address these practices and its harms.
- We will evaluate whether (it is better) to conceptualize the infrastructures of platforms holding corporate power of Modern Bigness as essential facilities and/or as public utilities, so as to protect both market and non-market values. These are terms of European law, but it means, in essence: should the government regulate these infrastructures or services more, for the public good?
- We will also look at innovation: is it true that innovation is just a click away and that the monopoly positions of Big Techs can be overturned by a start up? The question here is, again: how can competition law deal with entrenched power?
- We will also look at other sectors, such as the digitalization and platformization, in agri-food, with the use of the notion of Modern Bigness, to find out if powerful positions are consolidating there as well.
- We will also evaluate procedural law, because legal procedures against Big Techs can take a very long time: can the European Commission make better use of interim measures, to make competition law against the big tech companies more effective?
- And we will look at an abstract notion: ‘the marketplace of ideas’. This is the idea that people come to better knowledge and understand when ideas flow freely and can be discussed. We will link this to the Big Techs power as well.
In European competition law, which is part of European law mor generally - we deal with the effects of market power. There are rules limiting how companies-with-market-power can wield that power: they are not allowed to abuse their market power in a way that negatively impacts competition and the market.
The project ‘Modern Bigness’ however, starts from the idea that the powerful tech-companies represent something new. We call this ‘Modern Bigness’, because it is also new in comparison to the concept of ‘Bigness’ that, mostly in the USA, was used a century ago to combat powerful corporations. This project focuses on big techs power as more-than-market-power which also has negative effects outside the market: on democratic processes, on fundamental values, on our personal lives. We focus on how, when looking at the business-models of the big tech companies (this means: how they make money and profits), this distinction between market and non-market is not really relevant. From the business-perspective it is not important either whether a user of a platform is a consumer, a citizen, a family-member, or whether it is a political party, or a civil society organization. This means that the impact of Modern Bigness on market and non-market values is difficult to disentangle. And that leads to complex challenges for society and the law. European society is based on the values of an Open Society, built on the tenets of the rule of law, and encompasses values of personal autonomy, equality and solidarity. If these tenets and values are negatively affected by the powerful corporate power of big tech platforms, the question – for the law – is whether it can and should (and how) respond.
This project aims to understand the power of big tech companies better. And it answers how European competition law could respond to these more tangled effects, instead of European competition law focusing only on the market sphere.
The main objectives of this project are:
- We will develop an original theory to capture and conceptualize the new phenomenon: a theory of Modern Bigness.
- We will look at hypernudging (or microtargeting): the use of methods to influence decision making of users, who can be a consumer or a citizen (or both). And at how competition law can address these practices and its harms.
- We will evaluate whether (it is better) to conceptualize the infrastructures of platforms holding corporate power of Modern Bigness as essential facilities and/or as public utilities, so as to protect both market and non-market values. These are terms of European law, but it means, in essence: should the government regulate these infrastructures or services more, for the public good?
- We will also look at innovation: is it true that innovation is just a click away and that the monopoly positions of Big Techs can be overturned by a start up? The question here is, again: how can competition law deal with entrenched power?
- We will also look at other sectors, such as the digitalization and platformization, in agri-food, with the use of the notion of Modern Bigness, to find out if powerful positions are consolidating there as well.
- We will also evaluate procedural law, because legal procedures against Big Techs can take a very long time: can the European Commission make better use of interim measures, to make competition law against the big tech companies more effective?
- And we will look at an abstract notion: ‘the marketplace of ideas’. This is the idea that people come to better knowledge and understand when ideas flow freely and can be discussed. We will link this to the Big Techs power as well.
We have made progress in all subprojects beyond what we envisaged. Please find the publications of all team members: Anna Gerbrandy, Pauline Phoa, Lisanne Hummel, Laura Lalikova, Viktorija Morozovaite, Jan Polanski and Carla Farinhas. We have presented our work at numerous academic conferences and stakeholder engagements, with practitioners and the general public . Furthermore, we have presented and discussed research findings with students in different settings.
In most subprojects of the research project, progress has gone beyond state of the art.
• The conceptualization of power as Modern Bigness is truly novel.
• The work on hypernudging/microtargeting as a competition law concern has provided break-through insights.
• The work on innovation as a competitive pressure has led to critiquing existing theories of innovation and conceptualizing alternatives.
• The work on access to infrastructures has revisited the concept of public utilities, and proposes ways forward for competition law and regulation.
• The work in interim measures reconceptualizes this notion, and provides actionable ways for the European Commission to increase effectiveness of enforcement.
• The work in the marketplace of ideas combines both a highly conceptual analysis of the origin of this notion and an evaluation of its practical implications in current competition law.
Furthermore:
• We provide a novel theory of harm to counter political microtargeting; we have developed the notion of platforms as complex systems; we have conceptualized discursive power of big tech corporations as a threat to democracy; we have analyzed the constitutional value of competition law; we have provided advice on protecting media plurality; and we have grounded these notions in normative frameworks of constitutional democracies, the open society and the rule of law.
• The conceptualization of power as Modern Bigness is truly novel.
• The work on hypernudging/microtargeting as a competition law concern has provided break-through insights.
• The work on innovation as a competitive pressure has led to critiquing existing theories of innovation and conceptualizing alternatives.
• The work on access to infrastructures has revisited the concept of public utilities, and proposes ways forward for competition law and regulation.
• The work in interim measures reconceptualizes this notion, and provides actionable ways for the European Commission to increase effectiveness of enforcement.
• The work in the marketplace of ideas combines both a highly conceptual analysis of the origin of this notion and an evaluation of its practical implications in current competition law.
Furthermore:
• We provide a novel theory of harm to counter political microtargeting; we have developed the notion of platforms as complex systems; we have conceptualized discursive power of big tech corporations as a threat to democracy; we have analyzed the constitutional value of competition law; we have provided advice on protecting media plurality; and we have grounded these notions in normative frameworks of constitutional democracies, the open society and the rule of law.