Almost everything we do today leaves a trail of digital exhaust, a perpetual stream of texts, location data and other information we live on. Well after each of us is long gone. We’re now being exposed to as much information in a single day as our 15th generation ancestors were exposed to in their entire lifetime. But we need to be very careful because in this vast ocean of data there is frighteningly complete picture of us where we live we go what we buy what we say its all being recorded and stored forever. This is the story of an extraordinary revolution that’s sweeping invisibly through our lives and about how our planet is beginning to develop a nervous system with each of us acting as human sensors. This is the role of human in what we call digital age.
I don’t think there is any question that we are at a moment in human history that we look back on say 50 or 100 years and say right around 2000 years or so it all changed. I do think we will date before explosion of data and after. I don’t think it’s an issue of climate change, health or jobs, I think it is all issues. Everything has information at its core, everything. So if information matters, then reorganizing entire information network of the planet is like wiring up of the brain of 2 year-old child. Suddenly that child can talk and think and act and behave. The world is wiring up. A cerebral cortex if you will of billion connected elements that are going to exchange billions of connected ideas, billions of point of knowledge, billions of ways of working together.
If we focus on role of technology, it ultimately comes down to human capital and human potential and technology empowers human to do great things and therefore we have to be optimistic about how technology grow and what humans can do with that. But the issue is, there need to be global consensus that allows technology to progress and yet find that balance with legitimate interest that individual have, societies and cultures have and governments have. So in order to truly see the benefits of technology we need to get that global consensus and to the movie metaphor drawn above things can go wrong and in order to have happy ending we must strive for open-ended discussion.
Instant statistics is that 400 million people in the past year got a Smartphone and if you find that a big deal then imagine the impact of it on that person and the developing world. And as a result globalization and in which we believe in has produced the ties that bind, it is no longer for a country to step out from some basic assumptions in banking, in communications, in morals and in way people communicate, you cannot isolate yourself anymore, it just doesn’t work. So if we go forward I imagine that a whole new generation of technologies and ideas. Think about computer, which gives you enormous information and personal advise. We are on the cusp of an acceleration of the level of impact and it is almost overwhelmingly good
Competition law is not about size, it’s about actions that may unduly exasperate or enhance market power, there is an unavoidable dilemma of anti-trust with respect to things like if you act too soon you risk choking of all promising technologies promising pairs, and if you act too late the powers of incumbency, power of network effects, may be so strong that you cemented market power and entry is very difficult. And the general approach that industrial organization had towards thinking about innovation over last 25-30 years is that there are no. of influence on innovation, first, about the issue technological opportunity, which technology seems to be right for innovation. Go back 200 years it was textiles. Go back 150 years it was steam power, metallurgy and railroads. Go back 100 years it was electricity and internal combustion engines. Go back 50 years mainframe computers and telecoms, which of course where intermingly related with each other, and 25 years ago it was digitization. We no longer think about textile industries although lots of good innovation still happening. General condition of market demand – expanding demand generally more favors towards innovation
Ways high tech industries tend to be different from more traditional industries and use of traditional antitrust tools to asses competition in more high tech industries. A lot of this goes back to writings of Jordanian treatise in 1980’s and in particular wherein they highlighted n high tech industries traditional price based tools don’t work all that to well. For these industries its performance not price that is paramount which in way suggested that innovation is key. So it also means that course or dynamics of these markets looks very different. These industries are often marked by disruptions and paradigm shifts rather than traditional contest for horizontal market share and it also says that innovation and investment are important signal of competition and should not be disregarded based on less number of competitors. So a big concern might be conduct which impedes new entry but it is really important to remember that innovations come from within these incumbent firms as well. And it will be observed that traditional tools have tended to overweight the foreclosure of new entry effects.
COMPETITION IN THE DIGIAL MARKET
This is the era when the world economy is transforming rapidly, and the crypto currency like bit coin is setting new records every day. The rapid growth of digital market and the increased interaction by the users on digital platforms have given rise to the digital economy, while opening enormous opportunities for competition and innovation. The digital market consumers are driven by quality, rather than the low prices. The complexities which arise with the digital market are due to its multi-sided digital platforms, where the presence of one user is beneficial for the other. Collection and analysis of the data from the users, enables or may enable the host to strategically improve the quality of services, keeping ahead in the competition. The new rapidly developing digitalized market economy needs more data centric tools and approach in assessing digital markets by the competition authorities.
Digital market is now mainstream and even the most cautious firms have adopted a Digital Market strategy of some form, because of the detailed and strategically important understanding which can be acquired about the customers and their behavioral patterns. Marketers have started investing in digital markets or the data-driven business models, Data- driven business models, for example, often involve multisided platforms. Companies offer consumers free services with the aim of acquiring valuable personal data to assist advertisers to better target them with behavioral ads, as several European Commission officials observed,
In the digital economy, large sets of data (so- called ‘big data’) are becoming increasingly valuable as they reveal patterns of information that enable companies to understand user behavior and preferences and improve (or target) their products and services accordingly. This makes the availability of ‘big data’ a significant competitive advantage for companies active in, for instance, targeted online advertising, online search, social networking services and software products.
Taking the example of how Facebook collects information from its users, and shares it with the marketers, helping them to target the customers with the specific advertisements, thus generating revenue.
DATA THE NEW WINNING TOOL IN THE DIGITAL ECONOMY
With the digitization the traditional markets are being rapidly reshaped and there is an emergence of new innovative application based markets. Through Digitization, the industry is being transformed by connecting developers, suppliers, distributers and consumers, bringing them together on one single platform. Companies, with data- driven business models, are increasingly undertaking strategies to obtain and sustain a competitive advantage. Companies strive to acquire a ‘big data advantage’ over rivals. The question is why is consumer data so important and why are companies fighting to acquire more of it? The answer to this lays in the fact that collection and analysis of such data helps them to develop an accurate understanding of recruiting and retaining customers. Collecting and analyzing data can provide the company with insights on how to use resources more efficiently and to out maneuver dominant incumbents.
The management consulting firm McKinsey and Company observed that ‘the use of big data is becoming a key way for leading companies to outperform their peers’ and in one example, estimated that a retailer embracing Big Data ‘has the potential to increase its operating margin by more than 60 percent.’ The strategic significance of the user data could be gauged from the fact, that Financial Times in 2011 pulled its iPad and iPhone apps from Apple’s App Store., because Apple wanted to own the valuable data about Financial Times subscribers. Another instance highlighting the value of data in the digitized market is when Federal Trade Commission (FTC) blocked the sale of the personal data by Toysmart.com during its bankruptcy, when it tried to in cash the valuable customer data. The rapid growth and the changing ways in which companies compete in the scenario of digital economy can be understood through these instances.
The OECD observed that data can be a key competitive input as it now represents a core economic asset that can create significant competitive advantage for firms and drive innovation and growth. The observation of OECD is correct, as in 2013, Google paid the state attorneys general USD 7 million, as part of its settlement for illegally collecting between 2008 and 2010 residents’ personal information, such as email and text messages, passwords, and web histories while collecting mapping data from its Street View cars. Now, the question is why would company like Google which is already one of the most successful companies in the world, require personal data? The answer could be drawn from the above references, in the times of digital economy; data can help the company to have a competitive edge, or might enable it to eliminate competition.
LIMITATIONS OF THE COMPETITION AGENCIES
The dynamic and rapidly changing digital market in the era of digital economy, with the data as its driving tool, faces varied challenges as the competition in such a market can have unpredictable outcomes, like a merger which today, might not be a barrier to a fair competition, can be a potential barrier in the future. Therefore, the competition policy in a digital economy should be focused on guarding the market against such potential barriers, which suppress innovation, making it difficult for the new entrant to enter then market. This can be only achieved if the competition authorities adapt to the change, by changing their assessing methods.
The Facebook/WhatsApp merger raised many questions, why would Facebook pay 21.8 billion dollars just to acquire a company whose revenue was not more than 10.21 million dollars and was suffering a loss of 138 million dollars (approx.). in revenues and suffered a net loss of USD 138.146 million. Still, this merger wasn’t challenged by the FTC or European Commission. In fact FTC went on to highlight the Facebook/WhatsApp transaction as an example of coordination between the agency’s competition and consumer protection bureaus. Through this merger, the limitations of the competition authorities’ analytical tools in assessing the mergers in the light of digital economy can be gauged.
The competition authorities while assessing the merger over looked the possibility of potential barriers, due to several data-driven network effects. What if tomorrow Facebook may start collecting and using data from WhatsApp users? What if the merger enables Facebook to increase its market power through the data acquired and become a monopoly? The Commission never analyzed whether the acquisition was a defensive mechanism aimed to deprive its remaining competitors of the scale necessary to compete effectively, especially when Facebook dominates the social networking industry, and the merger involved the two most popular texting apps.
Looking at another merger when in 2013 Google bought Waze for USD 1.3 billion, neither the FTC nor the UK’s Office of Fair Trading (OFT) challenged the merger, this decision again reflected the inefficiency of competition authorities to analyze a merger correctly which worked solely on digital platforms, using data to increase precision. Google and Waze were almost the only competitors in digital navigation business. With acquisition of Waze, Google would obtain even more real- time geo- location data from individuals using the app on their Android and Apple smartphones, enabling Google to exercise dominance through its position in the relevant market. The competition authorities in examining the merger failed to examine how the merger could enable Google obtain dominant position and its effects in other markets, which in digital economy is the need of the hour due to multi-sided markets. The competition authorities in the era of digital economy and innovations with its old methods of analysis and tools, fails to accurately predict the impact of data-driven mergers in a multi-sided market.
In the era of digitization where digital market is one of the greatest contributors to the economy, competition authorities need to adopt a policy frame work which can efficiently and correctly assess the data driven mergers. For achieving better results, competition authorities need to move from old methods of analysis towards the methods which are data or digital market centric.
ADOPTING DATA CENTRIC APPROACH
The reasons why Competition authorities have failed to assess the data-driven mergers is because their assessment is based on measurability; they traditionally assess mergers based on price effect or the productive efficiency. Whereas in the digital market most of the services are offered for free, like the social media apps such as Facebook, Whatsapp, Viber etc. and therefore it makes it harder to assess the merger solely on the basis of price competition. This could be understood in the light of above arguments where the competition authorities fail to correctly identify Google/Waze and Facebook/Whatsapp mergers. Due to the lack of importance given to data driven mergers, competition authorities do not fully account for likely impact of mergers on dynamic efficiency (e.g. Innovation) and may not challenge a merger for lessening competition primarily on these parameters.
In the digital economy quality is an important feature, and most of the innovations are quality centric and so is the data. Quality being such an important factor stands at the same footing as price; therefore the inability of competition authorities to assess the mergers on the basis of quality and how acquisition of data after a merger can impact the market has led many mergers to go unchallenged. In determining the impact of data driven mergers on the market competition authorities should switch to using tests which are quality centric, recently the Supreme Court of China in Tencent vs. Qihoo, for the first time relied on Small but Significant and Non-transitory Decrease in Quality (SSNDQ) test as the competition was based on quality factors rather than price factors. The Competition authorities should adopt such analytical tools while assessing mergers in the digital market to have better precision.
The categorization of mergers by the competition authorities is based horizontal, vertical, and/or conglomerate but with the emergence of digital economy there is a need for a new category for data-driven mergers. The inability of data driven mergers to fit under any of the category with no appropriate tools, makes it impossible for the competition authorities to assess them correctly. When Google acquired Nest Labs the competition authorities failed to correctly asses the merger since the merger could not fit into any of the categories. It could neither be described as a horizontal merger since Google did not deal in carbon monoxide detectors or thermostats or the surveillance cameras, or a vertical merger as Google and NestLabs were not in a of vertical relationship. Due to lack of guide lines on assessing such mergers, competition authorities have failed to successfully stop the anticompetitive mergers. The competition authorities should adopt a new frame work in the light of digital economy, or amend the existing framework in order to have a better assessment of the data-driven mergers, not allowing the anticompetitive practices to hamper the innovation, while maintaining the ease of entry to the market.
Dynamic Role of Competition Authorities in Regulating Digital Economy
The pace with which our economy is transforming into digital economy, intervention by competition authorities is important before problems set in. As correctly said by Hon’ble Supreme Court that
“In the event of delay, the very purpose and object of the Act is likely to be frustrated and the possibility of great damage to the open market and resultantly, country’s economy cannot be ruled out”.
In the times when promoting innovation is more important than laws for simply regulating digital economy. Competition policy do not take into account particular sector for its application i.e. it is sector neutral. The same tools would assess new economy business, which gets applied across the economy. These tools include “economies of scale, network effects and the possibility of consumers being locked-into a particular network, while undertaking competition law enforcement against such business”. Competition authorities to fulfill their objective of enhancing competition adopt approaches that might differ from countries to countries. These approaches sometimes act as barrier to competition and restrict innovation. For example in order to protect smaller rivals, competition authorities tend to promote policies of level playing field for players but in reality it tend to ignore competitors and tries to protect the process.
We have to consider the ways in which competition authorities can change their institutional arrangement so as to adapt these changes in economy comfortably. Since this institutional arrangement can vary from country to country – there cannot be general guidelines against such change in economy. From the above discussion we can say that independent competition authorities are need of the hour to ensure fair and transparent system. Even countries with developed and independent competition authorities and regulators (like EU etc.) can incorporate changes and still there is room for improvement.
But with this we are faced with another set of views which thinks intervention by competition authorities may leave firms with less incentives to innovate and hence undesirable and should be allowed only in circumstances which call for it. They base their argument on the fact that dominance in present time may last for long because of “constant fear of being outdone by others”. Also because of this fear, we can expect a high paradigm shift that will upset the status quo. Therefore, innovation will prove to be an only solution in this detrimental situation as it will ensure automatic correction without any regulatory intervention. In furtherance to above point, lack of technical expertise available in addition to delay in arriving at a decision by competition authorities will be ineffectual in the fast moving economy. Hence this mismatch between law time and real time is not suitable and irrelevant.
Above set of arguments tend to overshadow the effect of any dominance which erupts after series of investigation. For another disruptive innovation to come into play, in mean time dominant firm through their distorted practices might acquire such market power which may enable them to capture the new entrants and market therefore, by creating a whole new cycle of innovation and dominance.
“Commitment decisions” which binds the party making them, without establishing an infringement is good way to tackle above dilemma and hence making it possible to quickly restore undistorted conditions of competitions in the markets.
“fast-moving markets would particularly benefit from a quick resolution of the competition issues identified. Restoring competition swiftly to the benefit of users at an early stage is always preferable to lengthy proceedings, although these sometimes become indispensable to competition enforcement”
This is accepted practice among developed nations and umbrella organization.
Adopting Interim Measures
To prevent the severe irreparable damage caused to competition caused by infringement which are continuous in nature, interim measures turns out to be an important solution in this case to prevent further harm. But to assess harm in digital market is in itself a difficult task, and imposing interim measure could be over-protective which will affect the competitors. Therefore interim measure should be well composed. For example, we cannot adopt divestiture as an interim measure as it has permanent effects.
Interim measure mostly comes into play in cases of abuse of dominance or in agreements where vertical chain of command forms an important part. United Kingdom has an explicit provision allowing interim measure in cases where infringement fulfills certain conditions. Urgency and likelihood of infringement forms are standard conditions to be fulfilled. Former requires case by case analysis while later varies across jurisdiction. Urgency of a situation is arrived upon by assessing the harms associated with it and there cannot be any general rules to asses. Immediate actions is proceeded with the assumptions that damage could not be repaired through proceedings if initiated or the damage relates to the public. “Likelihood of the infringement” might include mere possibility or certain defined probability threshold.
With the impact of digitization on market and emergence of services offered purely over digital markets, importance of interim measure increases manifold.
“Instead of directly initiating proceedings on the merits of the case, it makes more sense to first of all order interim measures where there are rapid changes on dynamic markets (Art. 8 of Regulation 1/2003) since as a rule expedited measures are necessary (urgency as reason for the order), and material justification arises from the fact that the measures against a specific market party (regardless of developments which might take place later) are presently preferable in comparison to failure to carry out such measures (justifying an entitlement to the order). The decision on the order could potentially also be used within the current law to test remedies in practice before they are permanently declared binding in a later ruling on the merits of the case.”
Mismatch of Law Time and Real Time
“For the competition regime to best support the online ecosystem, it needs to move faster… To deal with fast changing markets, we need a fast moving competition system. More timely conclusion and enforcement of competition cases will be vital in helping us better respond to competition issues online.”
Above statement appropriately tells about the mismatch or unduly lengthy competition procedures. To avoid uncertainty for businesses it is necessary to timely dispose of the matter in hands as it would uncorrected anticompetitive conduct even after detection. Also statement by Adam Cohen for striking correct balance between proper investigation and speed of proceedings tells us about the dire need of such measures.
”Investigations should probably take as long as they need to take. Some of the issues involved in our business are very complicated and have evolved quite significantly even in the period during which we have been investigated.”
Reflection of this need could be seen among competition authorities as they are increasingly aware that there is a need to increase the efficiency of the investigation process without reducing the quality of the proceedings. Nordic competition authorities and United Kingdom presents an example for this.
Conclusion: Moving towards Fourth Industrial Revolution
What is happening to the world, everything is changing. The very idea of human being as some sort of natural concept is really going to change. The original industrial revolution was driven by the discovery that you could use the steam engines to do all sorts of interesting things. That is followed by additional revolution for electricity and computers and communications technology. We are now in the early stages of fourth industrial revolution which is bringing together digital, physical and biological systems.
Vodafone chief in World Economic Forum said
“He see a movie in front of me, I know the end of the movie, we operate in 40-50 countries and little bit where story is today and I can tell you it is just the beginning of great stories. And if you think of the movie, is a movie of everybody connected with very low latency very high-speed ultra dense connectivity available for objects and human and when we see where we are today we find that we are at the start of something amazing. We are seeing a complete revamp in the way people farm in turkey where we have largest farmer club in terms of productivity, the way people manage their health, the way people are educated like in Egypt 400,000 people are educated through our technology and among 60% comprises of women, which is not possible probably not affordable at the beginning of the movie, education of teachers (South Africa) inclusion like mobile money in merging market- one-third of kenya’s GDP goes through payments”
Competition Law comes into play to help consumer reap of the benefits from this digital economy by lessening the risk associated with it.
We have above discussed the implication of data driven mergers, network effects, and monopolistic behavior. Data, on which future economics is dependent, always favors dominance and concentration of market power. Stockpile of data should not be done at the cost of individual’s privacy. Competition law must come to rescue individual in cases where this stockpile is left unchecked as its harm will go our democratic ideals of a loss of autonomy and freedom.
“What are you, the people we have elected, doing to protect the freedom of. . .citizens and assert the fundamental rights of the analogue world in this digital age? If you don’t succeed, who will? Who decides what rules we are to abide by? Who should protect the law?”
While there will always be debate on role of competition law enforcement, it is important for us understand that competition law enforcement has always benefitted free market system and the consumer for which such enforcement is there in first place.
It will be wrong to say that economic conservatives are against or don’t believe in competition policy because from Adam Smith to Richard Bork, for whom free-market and free-enterprise is essential feature of an economy, have long ago recognized the importance of such regulatory policies.
But present established principles and procedures are not adequate answers in the new developing business model. Therefore reforms have to be brought in the established procedure keeping in mind not only today’s digital market but also regular market which are being digitized rapidly.
Competition authorities must take into “Business as starting point” of the analysis. It should focus on medium of profit for a particular company and ways in which other model can take away the profits. This allows them to better account for interdependencies between multiple platforms.
Relying less on the market shares or profit margins and focusing more on indicators which finds the alternative routes to reach end users while assessing the dominance of a firm might help competition to assess the position in better light. For example mergers may have such effect when they involve the merger of large platforms with many users, of which at least one operates a business model that exploits indirect network effects in non-transaction markets. Similarly, a set of multiple exclusive agreements may close down routes to reach end-users and defensive leveraging may prevent the creation of alternative routes.
In India, where the incumbent government presents its vision of pushing Indian digital economy to 1 trillion dollar in next 5 to 7 years, it is saddened to see that major players resort to “deep discounting tactics” instead of utilizing the capital for innovation and development. This practice defeats the very purpose of societal gains. Societal gains emerge from the profit a firm obtain and valuation through innovation. But in present times firms do not resort to innovation but try to use financial capital to kick off network effects.
This article is written by Kartikey Pandey and Aditya Singh. Kartikey and Aditya are students at RMLNLU, Lucknow. This article secure 8th position in the RostrumLegal Essay Competition, 2017.
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 Ibid at 2.
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