EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

the ideas behind the decentralisation of social media platforms. In particular, there has been a continuing movement away from solely price-based competition towards the recognition of non-price factors of competition. In particular, the Court of Justice recognised in the Post Danmark I (2012) case that “competition on the merits may, by definition, lead to the departure from the market or the marginalisation of competitors that are less efficient and so less attractive to consumers from the point of view of, among other things, price, choice, quality or innovation ” (para 22). There has also been a development of the recognition of non-price factors (particularly privacy) in the merger practice of the Commission. While restricting any privacy-related concerns caused by the increased concentration of data within the control of Facebook to the realm of privacy and data protection law in the Facebook/WhatsApp (2008, para 164) case, the Commission adapted its views. In both Microsoft/LinkedIn (2016, paras 255, 350) and Google/Sanofi (2016, para 69) merger decisions, the Commission acknowledged that privacy or data protection could play a role as non-price factors of competition. In principle, there is no reason why the various features of decentralised platforms mainly revolving around some form of content moderation and user experience should not be recognised in the same way as privacy or data protection. It could be even argued that the mere existence of various decentralised networks each with individual models of content moderation provides proof that there already is a general form of competition on these factors. 4.2 Drawing Relevant Markets for Decentralised Platforms Secondly, it is necessary to examine whether decentralised platforms can be placed in relevant markets. A relevant market for social networking services (in general) has already been defined. According to the Commission’s decision in Facebook/WhatsApp (2008, paras 51–55), social networking services as products have as their defining features the creation of a personal profile, list of contacts, exchanging messages, sharing information, commenting on other users’ content recommending content to others. In contrast to consumer communication applications, social networking services offer a richer user experience but are not aimed primarily and solely on facilitating real-time communication. Clearly, most of the abovementioned existing decentralised platforms could be placed in this type of relevant market (albeit with a very small market share). On the other hand, to put the proposed “middleware” solution requires a different delineation of relevant markets: an upstream and a downstream market. The precise definition of relevant markets would depend on the level of decentralisation of a social media platform’s roles: as already pointed out in Section 3, the original

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