Discussing The Legitimacy of Digital Market Surveillance

Abstract

Legal compliance is increasingly becoming digital, and that is a fact. In shaping its digital future, in the past years, the European Union has been proposing one legal reform after another, such as the Digital Services Act package or the AI Act. A common thread in these developments is the policy reflection on not only how to update or make new rules for digital markets but also how to enforce them effectively. This has already been reflected in earlier instruments such as the Consumer Protection Cooperation Regulation or the Digital Market Surveillance Regulation. Although necessary for checking legal compliance, resulting digital enforcement practices need fast innovations from an interdisciplinary scientific space, (e.g., law/computer science/behavioral sciences) which is in its infancy. The pursuit of developing “tools” that can monitor market actors or detect harmful behaviors requires, at a minimum, clear legal interpretations, the translation of these interpretations into computer science tasks, and the ranking of harms affecting consumer behavior. This gap and the surrounding pace at which demands for filling it increases, create some interesting questions relating to the ethical and legitimacy limits of digital market surveillance. In this position paper, we firstly explore definitional frameworks for surveillance on digital markets and digital enforcement and subsequently propose a practical taxonomy for the types of digital compliance activities which may be undertaken by designated authorities in the European Union as a result of recent enforcement regulation, particularly in relation to consumer protection and competition authorities. In this section, we look at the new CPC Regulation and address some of the issues relating to its application to the digital economy. In the third section, we critically reflect upon the dangers of privatizing legal enforcement and briefly address some potential solutions. The fourth section concludes.