Gatekeeper Regulation in the Digital Economy – The Pitfalls (and Opportunities) Ahead?

Intense regulatory scrutiny on the digital economy and “Big Tech” companies has led to a raft of expert reports and regulatory proposals across the world relating to the digital economy. Regulators have increasingly focused on identifying digital businesses who play a “gatekeeper” role as the basis of regulatory intervention. However, the exact delineations of how such a “gatekeeper” designation should be determined remain amorphous. There are complex questions where further debate and consideration should continue, in particular: how should a “gatekeeper” designation be formulated, and is a “blacklist” or principles-based approach to restricted conduct more suitable in the dynamic digital economy? Beyond the form such regulation takes, what types of “gatekeeper” conduct should be regulated and how will this impact longer-term competition and innovation incentives?

By Rod Carlton, Rikki Haria & Caroline Chew¹

I. THE (RE-)FORMULATION OF THE CONCEPT OF “GATEKEEPERS”

With the digital economy and “Big Tech” companies under intense regulatory scrutiny across the globe, regulators have increasingly coalesced around identifying digital businesses who play a “gatekeeper” role as the basis of regulatory intervention. Many regulators have focused on identifying as “gatekeepers” those digital platforms who play a “dual” role in the market, in that they provide a crucial upstream service while at the same time competing with other t