In March, the three institutions above mentioned published different papers that seek, among other things, to regulate digital markets, to provide the CMA with more antitrust and consumers enforcement tools and to create a new “digital authority” that would have complete oversight on the myriad of regulators which have a remit covering the digital world. This is probably the most comprehensive and well designed initiative to clampdown on big tech giants. And yet, many of the proposals submitted are likely to be implemented.
On February 25, the CMA sent a letter to the Government asking for new powers and legislative changes to better deal with some of the most recent challenges, namely Brexit and digital markets. The CMA seeks new powers to impose legally binding remedies in market studies and market investigations when the regulator finds an adverse effect on consumers. If this proposal is finally adopted, it may have a great impact on big tech companies as antitrust rules aren’t normally useful in challenging most of the Internet companies’ practices. However, an adverse impact on consumers could be easier to prove and this would open the door for regulators to adopt legally binding remedies. To complement this, the CMA is also asking for new powers to adopt interim measure. Though the approval and implementation of such measures may be subject to judicial review, this proposal could really have an impact on a company’s revenue. On the other hand, it also provides the regulator with an important tool to adopt effective remedies in fast moving digital markets which would not only benefit consumers but also some companies.
On March 9, the UK House of Lords published a report named “regulating on a digital world” where the Parliament urged the government to adopt new regulation in the digital environment. The report is a long text where the Parliament wants to make sure that the big tech companies are accountable for their actions. This include control of personal data, privacy concerns, a code of conduct and to regulate certain platforms. Interestingly, the Parliament is indirectly endorsing the CMA’s request for new powers to protect consumers. The report also suggests that the government should create a new public interest test for data driven M&A. In short, the U.K. Parliament favours the implementation of a very comprehensive Internet regulation where Google, Facebook, Amazon and other platform intermediaries not only may be subject to hefty fines and far reaching remedies but also to special obligations to ensure more competitive markets (i.e. data portability, provide access to third parties, etc.).
Last, on March 13, a Digital Competition Expert Panel submitted a report to the Government in which the panel suggested that the government should provide more powers to the CMA to better enforce competition law in digital markets.
In summary, the U.K. is the first major antitrust jurisdiction that admitted the shortcomings of the current antitrust tools to challenge some of the companies’ practices in the digital markets. This has lead the different public bodies to adopt a well orchestrated approach to grant the regulator with more powers and to close any legal loopholes that could prevent the regulator from taking further actions. It is likely that in the next year the CMA will open new probes for antitrust and consumer violations against Internet companies, will start market studies in the online advertising sector and the parliament will adopt new regulation imposing new obligations on intermediaries platforms.
