How Self-Preferencing Can Violate Section 2 of the Sherman Act

Self-preferencing occurs when a firm unfairly modifies its operations to privilege its own, another firm’s, or a set of firms’ products or services. Extensive domestic and international investigations have confirmed that dominant technology corporations, like Google and Facebook, use self-preferencing to acquire, maintain, and entrench their dominant market position. This article will explain how self-preferencing can violate Section 2 of the Sherman Act. Part 2 of the article will discuss how Congress intended and designed the Sherman Act to prohibit unfair competition. Part 3 will detail the harmful and exclusionary effects of self-preferencing. Part 4 will explain how self-preferencing can violate Section 2 of the Sherman Act by analyzing the statute’s current legal framework, as determined by the Supreme Court, and the statute’s application to historical monopolization cases.

By Daniel A. Hanley¹

I. INTRODUCTION

Self-preferencing occurs when a firm unfairly modifies its operations to privilege its own, another firm’s, or a set of firms’ products or services. For example, Google can manipulate its search rankings to favor its own shopping platform and prevent dependent (often rival) firms from obtaining visibility on its site.² Exhaustive investigations into Google’s, Apple’s, Facebook’s, and Amazon’s (collectively, “GAFA’s”) operations by private and public institutions show the harms self-preferencing can cause to market participa