EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

platform could only take charge of hosting user profiles, user content, and user interactions. Conversely, another possible form of decentralisation would only include new services as additional filters and the original platform would not substantially change from its current form. In the former scenario, an upstream market would most likely entail the provision of user data and most likely some form of “platform” data (covering data necessary for middleware service to fully connect to the platform). On the other end, a downstream service would most likely encompass some form of analytic software and/or some of the functionalities already associated with social networks in the Commission’s practice. The concept of markets for data is not unknown in EU competition law: in merger practice, Commission defined various upstream and downstream markets where data [financial markets data in Thomson Corporation / Reuters Group (2008, paras 34–35, 109–110), TV audience data in VNU/VPP/JV (2004, paras 8–11) or data used in navigation software in TomTom/Tele Atlas (2008, paras 1, 17)] was provided on the upstream market and used in services provided on the downstream market. However, it should be stressed that current competition law standards only allow for the definition of a market for data in case the information is already traded (Graef, 2016, p. 81). The latter scenario is slightly less explored in practice, though in the case of social media platforms, it had a relatively close counterpart in the relationship between Twitter and TwitterAdder, a software built in 2011 to exist “on top” of the entire Twitter platform and provide users with functionalities (mainly automated posting) not available on the platform itself (Twitter, however, sued TwitterAdder, which subsequently shut down, see MarTech, 2013). 4.3 Use of Competition Law and Decentralised Social Media Platforms Lastly, the paper inquires whether any use of competition law is possible to either achieve decentralisation or maintain a decentralised state. There are many hypothetical situations where competition law could play a role when it comes to the relationships between large social media platforms and newcomers. One is a situation where platforms and independent service providers enter into agreements on the sharing of user data that may be contrary to Article 101 of the Treaty on the Functioning of the EU (“TFEU”) (European Commission, 2019, p. 91). However, it is Art. 102 TFEU that is the most relevant in the context of platform decentralisation, as it directly relates to the position of the largest online platforms. As these platforms would most likely satisfy the definition of “dominant undertakings”, they would be covered by the prohibition on abuse of dominance. In its Competition Policy for the Digital Era document, the Commission foresees

131