This blogpost is the first in a series of short commentaries on the European Commission’s proposals for a Digital Markets Act and a Digital Services Act, released on 15 December 2020. Stay tuned for more.
Let me start with a heartfelt compliment: well done with the DMA&DSA! These are timely and useful proposals aiming to ‘to establish a level playing field’ and create ‘a safer digital space’. But I wonder: are we missing a bigger picture? Do the proposed rules curb the power of the Big Tech companies sufficiently?
Checks and balances on power
Power, in a healthy democratic society, governed by the rule of law, should be checked. Power, both of governments and companies, should be counter-balanced. Therefore, as a healthy market economy requires such checks and balances too, European competition law guards against misuse of monopoly-power. Think: keeping markets contestable and innovative, prices reasonable and choices abundant. This is the domain of producers and consumers, demand and supply. The DMA’s proposals on ex-ante regulation of gatekeeping platforms fit mostly within this domain, and so do the consumer-related transparency-rights included in the DSA.
But guarding against power – public and private – is also pivotal for protecting a vibrant democracy and public domain. Think: lobbying and anti-capture rules; independent agencies and courts; protecting fundamental rights; guaranteeing access to public services; having an open and diverse press to create a civic space. This is the domain of citizens and politics. Here, we also have us, as private, but innately social persons. The DSA’s proposals on misinformation and on illegal content fit in this domain.
The power of Big Tech companies impact these domains in ways that are entwined and complex. The question is whether the proposed regulations will really curb this power.
A seamless, expanding bundle
The business models of some platforms are based on optimizing users’ attention; about keeping users within the companies’ platform ecosystems. It is the bigger of such platforms that the DMA qualifies as ‘gatekeepers’. More specifically, they are gatekeepers to markets, to infrastructure, to services, to information and knowledge. If an ecosystem is seen as a mostly seamlessly interrelated bundle of services, apps and infrastructures, these are gatekeepers to pretty much all we need for socializing, working, information-gathering, shopping and (home-)schooling.
Within this ecosystem, at least for now, data is gathered and combined to optimize business outcomes. The bundle is ever expanding; the conglomerate ecosystem grows. Some big tech companies are innovating and entering markets of public services, such as health care and education and affordable housing. Here, the domains of markets, democracy, and the private activities of citizens have always touched in the recognition that it makes sense to regulate monopolies or services where this serves the common good, and in many EU-countries public services are not fully functioning markets. Access is deemed necessary for all, for the opportunity to live the full life of a capable agent and citizen.
In organizing public services, data-gathering (let alone data that is combined within an ecosystem), nor profit-making is usually the overriding rationale. Big Tech’s innovations can be welcome, but adding (public) services to the ecosystem broadens their scope and strengthens the reach and power of these companies. More fundamentally, it changes the picture of what constitutes the ‘common good’, how the common good is provided and who gets to have a say in this. The proposals do not really guard against the inroad of Big Tech into services of the public domain.
The power to shape reality
The interconnectedness of platform-ecosystems has many great advantages, but the seamless interfacing has also meant an encroachment upon individual agency. A sense of loss of autonomy. A shaping of our choices and our perceived realities.
This shaping of reality is connected to knowledge (a power in itself). It is shaped through news, in all its many forms, by tidbits of information through all sorts of channels, including those that are not primarily motivated to provide the most factual/objective or deep-delving news or background story but by keeping attention of users. Platforms, at least some of them, have real power here. Though big and smaller platforms often combat misinformation, and the DSA’s proposals support this, it is a continuous struggle. The result is a sense ‘that our shared sense of reality is breaking apart’. Both having an open and diverse civic space and a shared sense of what is real shapes a democracy (and I write this while the US Capitol has just been stormed). The proposals contain obligations for the gatekeeping platforms that will have an effect on their practices. However, it seems that the big tech companies retain this power to continue shaping user-citizens’ reality.
The DSA & DMA rules do curb the power of big tech companies in specific ways; they will shape behavior and impact businesses in a very real way. Also, the enforcement regime is as effective as possible. But the complexity of the power of Big Tech companies does not seem fully reflected in the proposals. Admittedly, that would have been difficult within the framework of the DSA & DMA, but for a European Union of “Rights and Values”, protecting both market values and a vibrant public domain should continue to be a priority.