Large Online Platforms Research Articles

EU digital law and the digital platform economy—an inquiry into the co-evolution of law and technology

AbstractEU digital policy is currently one of the most ambitious and far-reaching endeavors to regulate the digital economy. Online platforms in multisided markets with digital ecosystems lie at the heart of digital technologies and business models. Among others, they pose new challenges with regard to the abuse of a dominant market position, thus ultimately reducing competition and innovation. This paper outlines an evolutionary approach to the co-evolution of law and technology with collective cognitive constructs and wealth effects as essential drivers (Eckardt (2001, 2008). It is then applied to the evolution of EU law in this field. After an overview of the evolution from telecommunication monopolies to the current digital platform economy, a case study presents firstly the Google Search (Shopping) case (2010–2024). Based on traditional EU competition law, it resulted in gradual judge-made legal innovation. It also generated new knowledge about the shortcomings of the ex post approach of EU competition law when applying it to the digital platform economy. As a consequence, secondly, the introduction of the Digital Markets Act (DMA) (2020 onwards) as a radical statutory innovation is discussed. The DMA introduced a novel ex ante regulation for large online platforms to overcome the problems of traditional EU competition law. Finally, the paper reflects on the impact of wealth effects and the (co-evolving) cognitive constructs of the relevant players as drivers in this current example of the co-evolution of law and technology. The paper concludes with an outlook on further areas of empirical and conceptual research that can provide a better understanding of the co-evolution of law and technology and allow for better policies in regard to disruptive technological innovation.

The Legal Significance of Independent Research based on Article 40 DSA for the Management of Systemic Risks in the Digital Services Act

Abstract As part of its risk management system, aiming at the mitigation of so-called systemic risks on very large online platforms and very large online search engines (VLOPSEs), the DSA introduces data access rights for independent researchers. With this instrument, the legislator hopes to enable the production of evidence concerning possible threats to society and democracy that might be linked to these platforms or search engines. After an overview of the functioning of the risk management system in the DSA that is characterised by a collaborative governance framework and a learning-based approach, the article will explore the role of the researchers inside this framework. It thereby focuses on the legal significance the researchers’ evidence could have for the risk mitigation obligations imposed on the VLOPSEs in the DSA by interpreting the provisions of the DSA.

The Privacy/Antitrust Curse: Insights from GDPR Application in Competition Law Proceedings

In response to the emergence of large online platforms whose business model revolves around the collection and processing of personal data, it is usually suggested that competition and data protection are synergistic, hence requiring an integrated approach. In this respect, Europe represents the testing ground for evaluating how privacy breaches may inform antitrust investigations. Indeed, the General Data Protection Regulation (GDPR) on the one side and the German Facebook antitrust decision on the other side are considered the benchmarks of this new stance aimed at linking market power and data power. This paper tests the concrete viability of such an approach, analyzing how data protection rules and principles have been applied in antitrust proceedings by the European Commission and national competition authorities. Notably, the paper aims at demonstrating the fallacy of the narrative which describes the relationship between privacy and antitrust in terms of synergy and complementarity. Furthermore, the paper maintains that the principles recently affirmed by the European Court of Justice in Meta do not appear conclusive in addressing the issue. The strategic use of privacy as a business justification to pursue anticompetitive advantages currently addressed in the numerous Apple ATT investigations indeed shows the tension between these areas of law. Therefore, rather than strengthening the antitrust enforcement against gatekeepers and their data strategies, the inclusion of privacy harms in antitrust proceedings turns out to be a potential curse for competition authorities, providing players with an opportunity for regulatory gaming to undermine the antitrust enforcement. JEL Codes: D83, K21, L12, L4

Navigating hate speech and content moderation under the DSA: insights from ECtHR case law

ABSTRACT The dissemination of hate speech online necessitates forceful content moderation to protect individuals and democratic values, without undue infringement of freedom of expression and the right to access information. In Europe, recent regulatory measures like the Digital Services Act (DSA) address the amplification of harmful content on social media, and place responsibilities on Very Large Online Platforms to counter societal risks, such as hate speech. The DSA mandates that platforms balance commercial interests with protecting user rights and safety, necessitating nuanced moderation strategies. However, both automated and human moderation face challenges in accurately identifying and countering hate speech. The European Convention on Human Rights (ECHR) and its interpretation by the European Court of Human Rights (ECtHR) provide essential guidance for navigating how to counter hate speech and also protect freedom of expression. This article aims to contribute to the understanding the emerging landscape of platform regulation and how the demands in the DSA can be better understood and operationalized regarding moderation of hate speech, in light of ECtHR case law.

Contesting personalized recommender systems: a cross-country analysis of user preferences

ABSTRACT Very Large Online Platforms (VLOPs) such as Instagram, TikTok, and YouTube wield substantial influence over digital information flows using sophisticated algorithmic recommender systems (RS). As these systems curate personalized content, concerns have emerged about their propensity to amplify polarizing or inappropriate content, spread misinformation, and infringe on users’ privacy. To address these concerns, the European Union (EU) has recently introduced a new regulatory framework through the Digital Services Act (DSA). These proposed policies are designed to bolster user agency by offering contestability mechanisms against personalized RS. As their effectiveness ultimately requires individual users to take specific actions, this empirical study investigates users’ intention to contest personalized RS. The results of a pre-registered survey across six countries – Brazil, Germany, Japan, South Korea, the UK, and the USA – involving 6,217 respondents yield key insights: (1) Approximately 20% of users would opt out of using personalized RS, (2) the intention for algorithmic contestation is associated with individual characteristics such as users’ attitudes towards and awareness of personalized RS as well as their privacy concerns, (3) German respondents are particularly inclined to contest personalized RS. We conclude that amending Art. 38 of the DSA may contribute to leveraging its effectiveness in fostering accessible user contestation and algorithmic transparency.

Article: Legislation Comment: Considerations on the Digital Markets Act, the Way to a Fair and Open Digital Environment

This paper aims to present how Regulation (EU) 2022/1925 (the Digital Markets Act) will enter into force, as well as a few points of interest related to the essential provisions of this Regulation which establishes clear rules for large online platforms. The article also tackles important challenges and practical determinations that will have to be taken into consideration in the process of implementing this piece of legislation together with significant legislative developments that will have to be enacted worldwide in order to comply or cooperate with the European legislation in the matter of digital markets. Digital Markets Act, Regulation (EU) 2022/1925, gatekeeper, Big Tech, core platform services, business users, end users

The Digital Services Act’s red line: what the Commission can and cannot do about disinformation

ABSTRACT The Digital Services Act (DSA) creates a system of general risk management that is composed of two main obligations: risk assessment (Article 34), and risk mitigation (Article 35). The obligations are mandatory for very large online platforms and search engines (VLOPs/VLOSEs). The adoption of the risk-based approach to digital services make the law more future-proof. But inevitably it also makes the law very vague. This vagueness of the statutory language causes some to suggest that the European Commission will inevitably become the proverbial Ministry of Truth when tackling disinformation. This article argues that upon closer reading of the DSA, and its constitutional context, the worries that the Commission inevitably becomes a Ministry of Truth are misplaced. Suppressing incorrect or misleading lawful information is not the goal of the DSA. That is not to say that the DSA cannot be abused. But the law is not pre-programmed to do so.

Fair share of network costs and regulatory myopia: learning from net neutrality mistakes

ABSTRACT To boost the roll-out of the next generation telecommunications infrastructure, EU policy makers have advanced a proposal mandating some large online platforms to compensate network operators with a usage fee. Framed as a matter of large market players paying their fair share of contribution to telecommunications networks, the proposal would represent another unnecessary and harmful regulatory intervention. Indeed, the paper aims to demonstrate that the fair share debate is the poison fruit of a previous intrusive government initiative, that is, the net neutrality regulation. Furthermore, like net neutrality anti-discrimination rules, a fair share Big Tech tax would be a solution that wouldn’t work for a problem that doesn’t exist. Instead of continuing to interfere in market dynamics and private negotiations without any solid evidence of market failures, the EU should learn from past mistakes and acknowledge the limited scope for regulation in these dynamic markets.

TikTok and Transparency Obligations in the EU Digital Services Act (DSA) – A Scoping Review

The Digital Services Act (DSA) entered into force in November 2022 and is directly applicable across the European Union since the beginning of 2024. The DSA imposes special rules on very large online platforms (VLOPs) such as TikTok. This study examines the transparency obligations for VLOPs set forth in various articles of the DSA. A scoping review identified three key issues related to TikTok’s adherence to transparency: content moderation, advertisement and terms and conditions. A comparative analysis was conducted between these identified issues and the specific obligations outlined in the DSA. The main finding of this study reveals distinct dimensions of transparency that have been addressed in the existing literature. The first layer includes the disclosure of information, but the information disclosed is often incomprehensible to the public. Therefore, calls have intensified for transparency at the second layer that includes comprehensibility of the disclosed information. The forthcoming DSA is expected to address this second dimension of transparency by requiring TikTok to provide more precise information regarding their content moderation, advertising, and terms and conditions. Finally, the literature indicates the emergence of a third layer of transparency, wherein information made public should also be tailored to the kind of audience it is made transparent to. In terms of ensuring the clarity and comprehensibility of the conditions and restrictions of the platform for children, the DSA also appears to advocate for enhanced transparency at level 3.

Impact of the DSA Regulation on Very Large Online Platforms

The activities of large online platforms based in third countries in the internal market pose potential risks to EU users. The EU aims to ensure a safe online environment not only for consumers, but also for all users active in this ecosystem. Increased security, legal certainty, consumer protection, transparency, and several other partial aims have led to the adoption of the Digital Services Package, which includes the so-called DSA Regulation. The present article aims to identify the key impacts of the new regulation on very large online platforms that are part of the daily routine of EU citizens and to highlight the benefits it brings to regular users. There are many changes brought about by the new legislation; therefore, we decided to focus only on those that we consider the most tangible, both from the perspective of the everyday user and for the platforms per se.

The Rise of Collaborative Consumption in EU Member States: Exploring the Impact of Collaborative Economy Platforms on Consumer Behavior and Sustainable Consumption

This study identifies a consumption model and consumer behavior patterns in the collaborative economy paradigm. The authors assessed the demand for technical innovation in the online commerce market in EU member states through monitoring, and used a moving average method to highlight the trend of the overall economic effect concerning national conditions. They also analyzed the main sectors of the collaborative economy for 2020–2022 and large online platforms subject to the legal landscape for studying European consumer behavior, establishing a consumption model and characteristic purchasing patterns within the collaborative economy. It has been discovered that collaborative consumption practices in European society are still expanding despite changes in global economic trends. It has been determined that the physical goods sector is the collaborative economy’s priority. It is demonstrated that online platforms of the collaborative economy primarily contribute to the redistribution of consumption centered on the following behavior patterns: economic value quality, social responsibility, and rational consumption. The study’s findings deepen our comprehension of collaborative consumption while also furnishing decision-makers and business leaders with information that can be put into practice to encourage responsible and sustainable consumption behaviors within the collaborative economy.

New European Union’s Regulatory Framework of the Digital Space: the Digital Markets Act and the Digital Services Act

With the adoption of two regulations in 2022, the Digital Markets Act (DMA) and the Digital Services Act (DSA), the European Union completed its digital services regulatory reform aimed at laying down horizontal rules applicable to the key providers of information society services, including large online platforms. Based on the legislative history, existing case law and the unfolding legal doctrine, this article examines links between the two legal instruments, key aspects of the new regulatory framework, as well as selected legal issues relating to its future application. All opinions expressed in this article are author’s personal views.

The “neo-intermediation” of large on-line platforms: Perspectives of analysis of the “state of health” of the digital information ecosystem

AbstractThe key role played by online platforms in the neo-intermediation of the public debate requires a review of current tools for mapping the digital information ecosystem, highlighting the political nature of such an analysis: Starting from a synoptic overview of the main models of platform governance, we try to understand whether the ongoing European shift towards the Limited Government Regulation (LGR) model will be able to counterbalance the “systemic opinion power” of the giant platforms and restore the “health” of the digital information ecosystem. A close analysis of the European Digital Services Act (DSA) has highlighted some limitations in achieving its goals, because of the features of the LGR on the one hand, and the disruptive features of the algorithmic neo-intermediation phenomenon on the other. Thus, we suggest a tripartite regulatory model, that can be defined as “neo-editorial accountability.” However, increasing users’ critical algorithmic awareness is an essential prerequisite for implementing the suggested template, and mitigating an outstanding effect of the LGR model: the normalization of the ideological assumptions underlying informational capitalism.

Balancing privacy and data use: The potential impact of large online platforms and central bank digital currencies

This paper reviews the international discussion among academics and policy makers regarding the trade-off between privacy protection and data use. In particular, it is intended to shed light on the mechanism behind the data monopoly enjoyed by the large online platform companies. The paper also discusses how central bank digital currencies can reduce the potential side effects of this data monopoly.

Understanding the Digital Markets Act

In September 2022, the European Union (EU) legislature adopted the Digital Markets Act (DMA)—a landmark piece of regulation with the potential to transform the digital economy in Europe and beyond. Even after adoption, however, questions remain about its stated goals, underlying assumptions, scope, obligations, and eventual effectiveness. This article examines these questions using EU competition law not as a touchstone but as a reference point. First, the DMA’s goals of “fairness” and “contestability” can be more accurately restated as the protection of intra-platform and the promotion of inter-platform competition. Second, the DMA is based on the idea that the enforcement of the abuse of dominance provision, Article 102 Treaty on the Functioning of the European Union (TFEU), is ineffective both procedurally (due to lengthy investigations and remedial issues) and substantively (due to the difficulty of establishing dominance and abuse)—two assumptions that must be tested by examining competition law’s track record. Third, the scope of the DMA is built around the concept of “gatekeepers,” which are in turn defined based on turnover, market capitalization, and active users. Is this an application of the resurgent “big is bad” ideology or a proxy for market power? Fourth, the DMA imposes a list of dos and don’ts on gatekeepers, many of which are inspired by past or ongoing antitrust investigations. Does this experience justify the far-reaching obligations and if so, are they sufficiently flexible to allow for procompetitive gatekeeper conduct? Finally, the DMA is based on the idea that large online platforms have not continued to deliver the desired innovation outcomes and have reaped more than their fair share of the rewards from the innovation they brought. This assumption is tested by a historical look at Apple’s App Store—the most important innovation platform to arise in the digital economy.

From Market Liberalism to Public Intervention: Digital Sovereignty and Changing European Union Digital Single Market Governance

AbstractAgainst the backdrop of the ever‐increasing importance of digital services, the European Union (EU) is promoting deepening of its digital single market (DSM). Whilst the single market has often been portrayed as the Trojan horse of neoliberalism, recent rhetoric on digital sovereignty indicates a desire for more control over the digital sphere. A historical case study of key elements of the DSM, namely digital services regulation and data protection, shows that EU governance has become less market‐liberal and more public‐interventionist. In response to challenges associated with the digital economy, policy goals have been broadened to include further objectives in addition to competitiveness. Stakeholders and public authorities rather than business actors have become more important in governance processes, and more market‐correcting instruments have been introduced. These reforms have been made by adding more interventionist elements and also by redirecting the role of the European Commission to overseeing very large online platforms.

Applying ne bis in idem in the aftermath of bpost and Nordzucker: The case of EU competition policy in digital markets

In bpost and Nordzucker, the Grand Chamber of the European Court of Justice finally arrived at a unified test for ne bis in idem, applicable to all areas of EU law. It rejected the antitrust-specific threefold condition of idem (same offender, same facts, and same protected legal interest) developed in Aalborg Portland and Toshiba, and focused solely on material acts, in line with Van Esbroek and Menci. The judgments are extremely timely given the increasing risks of overlapping decisions as a result of recent legislative initiatives undertaken at EU and national level targeting large online platforms. This article maintains that although bpost and Nordzucker are welcome, some relevant issues remain unaddressed and may undermine the sound implementation of the ne bis in idem principle in the digital economy. ne bis in idem, Digital Markets Act, competition law, platforms, enforcement

Antitrust Unchained: The EU’s Case Against Self-Preferencing

Abstract Self-preferencing is the symbol of the competition policy Zeitgeist in digital markets. Large online platforms acting as gatekeepers to their ecosystems and engaging in a dual mode intermediation are accused of taking advantage of their hybrid business model by granting preferential treatment to their own products and services. Alongside the recent legislative initiatives undertaken around the world to impose a neutrality regime over digital gatekeepers by targeting different forms of self-preferencing, this practice is also emerging in Europe as a new antitrust theory of harm advanced by courts and competition authorities. In the aftermath of the General Court’s decision in Google Shopping and against the risk that the new label may merely provide antitrust enforcers with the opportunity to skip the legal standards and evidentiary burdens required to prove traditional anticompetitive behavior, this paper investigates whether and to what extent self-preferencing could be considered a new standalone offence in EU competition law.

Democratic responsibility in the digital public sphere

Democratic responsibility in the digital public sphere

The Digital Services Act (DSA): A New Era for Online Harms and Intermediary Liability

The EU’s Digital Services Act (DSA) marks the biggest shake up to the rules for online intermediary liability in twenty years. The DSA is accompanied by flanking instruments regulating terrorist content, child sexual abuse material (CSAM) and political ads which, together, will create an entirely new framework for the regulation of online harms in the EU. These new and wide-ranging obligations attempt to reconcile the damage caused by unregulated user-generated content, fundamental rights to freedom of information and the practical limitations of moderating content at scale. The DSA is likely to shape the global approach to content regulation in this emerging area of law. Digital Services Act, DSA, Online Harm, Intermediary Liability, Intermediary Services, Hosting Services, Very Large Online Search Engines, Online Platforms, Very Large Online Platforms