TechREG Talks… with Katharine Kemp, Philip Marsden & Jacqueline Downes

In this edition of CPI TechREG Talks, we have the pleasure of presenting a summary of a discussion with Philip Marsden and Allens partner Jacqueline Downes, moderated by Katharine Kemp. This discussion was hosted by the UNSW Allens Hub for Technology Law and Innovation in Sydney, Australia on August 10, 2022. We thank all the participants for contributing to this discussion for CPI.

1. 1. We see abuse allegations before regulators and courts against various tech companies, both exclusionary (notably Amazon in respect of its competition with merchants on its marketplace, Google allegedly giving itself advantages over other ad tech providers; Apple preventing app developers from using other in-app payment systems, and so on), and exploitative (e.g. Meta’s alleged excessive accumulation of consumer data as a condition of using their platform). In spite of all this activity, there is great dissatisfaction with competition litigation as a means of solving these issues.

Philip, by way of background, can you talk about what’s going on globally in response to that dissatisfaction, especially in proposals for ex ante or upfront regulation, particularly in the EU and the U.S.?

Philip Marsden

As regards the U.S. and the EU, the substantive rationale for ex ante regulation tends to be structural problems relating to network effects and data accumulation. These can give firms an opportunity to exert market power and use it in some way, to exclude or to exploit. And that