Protecting and Fostering Online Platform Competition: The Role of Antitrust Law

Abstract

This essay provides a perspective on the role of antitrust law in protecting and fostering competition in the digital economy, with particular attention to online platforms. It highlights the danger of anticompetitive exclusionary conduct by dominant online platforms and describes ways that antitrust law can challenge and deter such conduct. The essay also identifies a number of difficulties that U.S. courts and enforcers face in challenging harmful exclusionary conduct by dominant platforms, and discusses some ways that regulation can supplement antitrust law in fostering competition. Many of these themes are pursued in more detail in my book, The Antitrust Paradigm,1 though in some places, this discussion goes beyond the book. Although some of the problems discussed here are distinctive to the United States, others can impede enforcement in all jurisdictions. These issues are increasingly salient in the United States. The House Judiciary Committee’s antitrust subcommittee recently conducted a high-profile investigation into competition in digital markets. The majority (Democratic) issued a staff report at the end of the investigation that targeted Amazon, Apple, Facebook, and Google—the four digital platforms it called dominant. The report detailed platform conduct said to exploit platform users and discourage platform competition.2 It identified a number of possible legislative remedies to combat the problem, including changes to the antitrust laws and new regulatory rules. Concerns about the four platforms were bipartisan: all but one of the subcommittee members in the minority (Republicans) endorsed the description of the harmful conduct of large technology firms in digital markets, though they took issue with some of the legislative recommendations.3 Against this background, it is helpful to review how dominant online platforms can harm competition through exclusionary conduct, and identify some of the challenges that arise in demonstrating and remedying those problems.