Antitrust Policy toward Intermediaries: Digital Platforms and “Big Tech”

This article considers U.S. and EU antitrust policies regarding intermediaries with digital platforms. The article examines antitrust concerns about “Big Tech.” The discussion emphasizes the need to apply advances in the Economics of Markets and Platforms in developing these antitrust policies.

By Daniel F. Spulber^[1]

I. INTRODUCTION

The United States and the European Union are developing major antitrust policies targeting digital platforms with a focus on “Big Tech.” The U.S. Congress is considering the American Innovation and Choice Online Act (“AICO”) (S.2992) and the Open App Markets Act (S.2710).^[2] The EU approved a provisional version of the Digital Markets Act (“DMA”).^[3] These antitrust policies are likely to have significant effects on competition and innovation in digital platforms. These antitrust policies also could have far-reaching consequences for economic growth and development.

Antitrust policies should not be aimed at companies simply because they are both “Big” and “Tech.” Antitrust enforcement in the U.S. has long emphasized anticompetitive conduct rather than market power or market share. Antitrust enforcement in the EU involves greater scrutiny of large firms but their conduct must exhibit “abuse of a dominant position.”^[4] Targeting companies based on their size and technology risks mischaracterizing both competitive strategies and anticompetitive conduct. Such antitrust policies could penalize innovation comp