Periodic Reporting for period 3 - MOBI (Modern Bigness : Challenges for European Competition Law)
Periodo di rendicontazione: 2023-01-01 al 2024-06-30
What is the project Modern Bigness about and why is it important for society?
Digital technology is everywhere and integrated into our daily lives. This makes the power and influence of large technology firms and technology platform-companies undeniable. ‘Big Tech’ firms have contributed significantly to the digitalization and datafication of society and the economy. Digitalization means the increasing use of digital technologies; datafication is the process of turning human actions and behaviors into digitized data: in aggregated form firms can use data for analyses and predictions to, ultimately, profit-making ends. Big tech firms 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. Thus big tech influences our interactions, our democracy and fundamental rights as well as the structure of markets and the competitive processes. If we consider the positions of specifically Google, Amazon, Facebook, Apple and Microsoft (but also other large tech-companies controlling digital platforms; and also, the growing role of platform companies in for example the agri-food field), it is clear that the digital economy reaches deeply into both the market and the non-market sphere. This power impacts the values that are inherent in how markets function, how social relations are shaped. This power also has impact in our personal lives; how we interact, how we work, how we obtain information and news.
In European competition law, which is part of the European law - we ‘know’ about 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. We think not only that the big tech companies’ power is more-than-market-power, but also that this power can lead not only to negative impact on the market, but also outside the market: on democratic processes, on fundamental values, on our personal lives. We study 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 whether an individual user of platform-services is on-line as 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 first aims to greater understanding of the corporate power of big tech companies. Secondly, it aims to answer the question if and how European competition law could respond to possible negative effects of this power in both the market sphere and outside the market sphere. This distinction is important, because currently European competition law remains mostly focused only on the market sphere (though this is changing somewhat recently). But if we are correct – that these effects are entangled – but also that these effects are negatively impacting the values of the Open Society, the legal regime might need to be changed. Interestingly, since the project started new rules and regulations have taken shape (the DMA and DSA specifically). Thus, the question we ask has been broadened to not only focus on European Competition Law, but on the regulatory framework more broadly.
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. This is Modern Bigness is qualitatively different from Bigness-of-old because of its basis in the networked, digital economy and is based on datafication of interactions. We will map and evaluate how its effects impact both the market and non-market spheres, to evaluate the applicability of European competition law and regulatory frameworks from a normative perspective.
- We will evaluate whether hypernudging, both within the market sphere and outside the market sphere, by companies holding Modern Bigness corporate power, should be (better) countered by competition law and/or regulatory frameworks.
- 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.
- We will conceptualize the notion and map the competitive pressure of innovation vis-a-vis the conglomerates of Modern Bigness corporations and evaluate whether European competition law and regulatory frameworks should be improved to account for its specificities.
- We will use the notion of Modern Bigness as a new lens to also evaluate corporate power in other sectors that are in the process of digitalization and platformization, such as the agri-food sector.
The project has had a flywheel effect and the team now also encompasses two additional subprojects with their specific objectives that fit in with the overall research:
- We will evaluate the (use of the) instrument of interim measures by the European Commission in light of its effectiveness and saliency in procedures against big tech companies.
- We will conceptualize the notion of the ‘marketplace of ideas’ and evaluate whether it is suitable to tie together impacts of corporate power of Modern Bigness in the market sphere and the non-market sphere.
Digital technology is everywhere and integrated into our daily lives. This makes the power and influence of large technology firms and technology platform-companies undeniable. ‘Big Tech’ firms have contributed significantly to the digitalization and datafication of society and the economy. Digitalization means the increasing use of digital technologies; datafication is the process of turning human actions and behaviors into digitized data: in aggregated form firms can use data for analyses and predictions to, ultimately, profit-making ends. Big tech firms 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. Thus big tech influences our interactions, our democracy and fundamental rights as well as the structure of markets and the competitive processes. If we consider the positions of specifically Google, Amazon, Facebook, Apple and Microsoft (but also other large tech-companies controlling digital platforms; and also, the growing role of platform companies in for example the agri-food field), it is clear that the digital economy reaches deeply into both the market and the non-market sphere. This power impacts the values that are inherent in how markets function, how social relations are shaped. This power also has impact in our personal lives; how we interact, how we work, how we obtain information and news.
In European competition law, which is part of the European law - we ‘know’ about 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. We think not only that the big tech companies’ power is more-than-market-power, but also that this power can lead not only to negative impact on the market, but also outside the market: on democratic processes, on fundamental values, on our personal lives. We study 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 whether an individual user of platform-services is on-line as 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 first aims to greater understanding of the corporate power of big tech companies. Secondly, it aims to answer the question if and how European competition law could respond to possible negative effects of this power in both the market sphere and outside the market sphere. This distinction is important, because currently European competition law remains mostly focused only on the market sphere (though this is changing somewhat recently). But if we are correct – that these effects are entangled – but also that these effects are negatively impacting the values of the Open Society, the legal regime might need to be changed. Interestingly, since the project started new rules and regulations have taken shape (the DMA and DSA specifically). Thus, the question we ask has been broadened to not only focus on European Competition Law, but on the regulatory framework more broadly.
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. This is Modern Bigness is qualitatively different from Bigness-of-old because of its basis in the networked, digital economy and is based on datafication of interactions. We will map and evaluate how its effects impact both the market and non-market spheres, to evaluate the applicability of European competition law and regulatory frameworks from a normative perspective.
- We will evaluate whether hypernudging, both within the market sphere and outside the market sphere, by companies holding Modern Bigness corporate power, should be (better) countered by competition law and/or regulatory frameworks.
- 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.
- We will conceptualize the notion and map the competitive pressure of innovation vis-a-vis the conglomerates of Modern Bigness corporations and evaluate whether European competition law and regulatory frameworks should be improved to account for its specificities.
- We will use the notion of Modern Bigness as a new lens to also evaluate corporate power in other sectors that are in the process of digitalization and platformization, such as the agri-food sector.
The project has had a flywheel effect and the team now also encompasses two additional subprojects with their specific objectives that fit in with the overall research:
- We will evaluate the (use of the) instrument of interim measures by the European Commission in light of its effectiveness and saliency in procedures against big tech companies.
- We will conceptualize the notion of the ‘marketplace of ideas’ and evaluate whether it is suitable to tie together impacts of corporate power of Modern Bigness in the market sphere and the non-market sphere.
We have made progress in all subprojects. Firstly, we have developed the notion of the corporate power of big technology platforms as Modern Bigness. This has been a huge achievement and a group-efforts (Gerbrandy, Phoa, Hummel, Lalikova, Morozovaite presented a group paper at Ascola 2021; publication of Gerbrandy & Phoa with a fully developed concept is forthcoming in 2022). The cooperation between post-doc and PI has been instrumental in achieving this aim. Secondly, all PhD projects have laid the groundwork for their dissertations, some opting for a dissertation based on articles (Polanski; Morozovaite; Farinhas), some opting for a monograph (Hummel; Lalikova). Laying the ground-work means that all candidates have covered the aspects of their research question in writings – often for internal use only – and are progressing towards writing and publishing articles (with Morozovaite and Polanski already having published, and Morozovaite and Farinhas having submitted further articles) or chapters. The findings of all PhD candidates have been presented at relevant academic fora. The post-doc is involved in developing the notion of Modern Bigness in relation to the agri-food chain.
The core-group (three internal PhD’s, post-doc, PI) has also been involved in setting up collaboration with stakeholders. This has taken longer than anticipated, mostly due to the covid pandemic and the lockdowns, during which the progress of dissertation writing has been the priority. We have set up a cooperation with the Dutch privacy authority and the Dutch competition authority to share our findings. We will also present these findings at the network of female competition law practitioners. On individual basis we have presented and discussed findings with practitioners and the general public as well. Furthermore, the core group has been involved in teaching a caput on Modern Bigness in the master’s Law & Economics at Utrecht University for three academic years, and has also been presenting and discussing research findings with students in different settings (bachelor’s, honours’ students, master’s students and PhD colloquia).
The core-group (three internal PhD’s, post-doc, PI) has also been involved in setting up collaboration with stakeholders. This has taken longer than anticipated, mostly due to the covid pandemic and the lockdowns, during which the progress of dissertation writing has been the priority. We have set up a cooperation with the Dutch privacy authority and the Dutch competition authority to share our findings. We will also present these findings at the network of female competition law practitioners. On individual basis we have presented and discussed findings with practitioners and the general public as well. Furthermore, the core group has been involved in teaching a caput on Modern Bigness in the master’s Law & Economics at Utrecht University for three academic years, and has also been presenting and discussing research findings with students in different settings (bachelor’s, honours’ students, master’s students and PhD colloquia).
In many subprojects of the research project, progress has already gone beyond state of the art. Most of the list below has already been published in articles or presented at conferences:
• The conceptualization of power, from a multidisciplinary perspective is truly novel. It has been presented at several conferences and workshops and will be published as a book chapter in 2022 (see above).
• The work on hypernudging as a competition law concern has provided break-through insights.
• The work on innovation as a competitive pressure has moved towards and critiquing existing theories of innovation and conceptualizing alternatives.
• The work on access to infrastructures has revisited the concept of public utilities, and is 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.
• The work in interim measures has revisited the foundations of the notions and is now moving towards rethinking these foundations in light of the challenges posed by big tech platforms.
• 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.
Expected results:
• A further finetuning of the theory of Modern Bigness, but more importantly a mapping of the actual effects of Modern Bigness on market and non-market domains.
• Using the theory of Modern Bigness to also evaluate power in other markets that are in the process of being digitalized and platformized.
• Insight into hypernudging by voice assistants; in education. Also a more fine-grained analysis of the consequences for both European competition law and the regulatory framework of e.g. the DMA.
• Developing the notion of platforms as complex systems, and the role of innovation in countering power and how to account for this in European competition law.
• Developing further the theory of the relationship between essential facilities and public utilities, and between public utilities and public services and relating these theories to the challenges and role of big tech platforms in modern societies.
• Developing an approach to better use the instrument of interim measures in complex digital markets, while not overlooking alternatives.
• Developing an overarching notion of how the concept of marketplace of ideas can be used to shape a European competition approach that protects against market and non-market effects of power of big tech over information, for example by developing further the standard of ‘wellbeing’ of consumers/citizens.
• Developing an overarching normative framework to bring all these strands together, and to answer the research question: how should European competition law respond to the corporate power, labelled Modern Bigness?
• The conceptualization of power, from a multidisciplinary perspective is truly novel. It has been presented at several conferences and workshops and will be published as a book chapter in 2022 (see above).
• The work on hypernudging as a competition law concern has provided break-through insights.
• The work on innovation as a competitive pressure has moved towards and critiquing existing theories of innovation and conceptualizing alternatives.
• The work on access to infrastructures has revisited the concept of public utilities, and is 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.
• The work in interim measures has revisited the foundations of the notions and is now moving towards rethinking these foundations in light of the challenges posed by big tech platforms.
• 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.
Expected results:
• A further finetuning of the theory of Modern Bigness, but more importantly a mapping of the actual effects of Modern Bigness on market and non-market domains.
• Using the theory of Modern Bigness to also evaluate power in other markets that are in the process of being digitalized and platformized.
• Insight into hypernudging by voice assistants; in education. Also a more fine-grained analysis of the consequences for both European competition law and the regulatory framework of e.g. the DMA.
• Developing the notion of platforms as complex systems, and the role of innovation in countering power and how to account for this in European competition law.
• Developing further the theory of the relationship between essential facilities and public utilities, and between public utilities and public services and relating these theories to the challenges and role of big tech platforms in modern societies.
• Developing an approach to better use the instrument of interim measures in complex digital markets, while not overlooking alternatives.
• Developing an overarching notion of how the concept of marketplace of ideas can be used to shape a European competition approach that protects against market and non-market effects of power of big tech over information, for example by developing further the standard of ‘wellbeing’ of consumers/citizens.
• Developing an overarching normative framework to bring all these strands together, and to answer the research question: how should European competition law respond to the corporate power, labelled Modern Bigness?