The Trans-Atlantic Tech Backlash: Convergence on GAFA Antitrust
Image Credit: geralt via Pixabay
Dr. Aurelien Portuese
11th September 2019
The American tech backlash has just started. All four tech juggernauts - Google, Amazon, Facebook and Apple, or 'GAFA' - are subject to unprecedented comeuppances; they, respectively, provide "search, social media, and some retail services online", as described in the DoJ's July 2019 announcement to launch investigations. Google and Amazon are both set to be investigated by the DoJ. The FTC has just imposed upon Facebook a whopping $5 billion fine, the largest ever. The FTC has also started investigations against Apple, and is now poised to scrutinize Google in a radical U-turn after closing its investigations against the company in 2013.
This backlash comes amid the already powerfully effective European tech backlash. 'We should be doing what they are doing' said President Trump regarding the European Commission's attacks on American big tech companies. Instead of causing concern, as it did in the case of the highly criticized French tax on GAFAs, the European tech backlash represents a legitimate ground upon which American enforcers trigger investigations. The European Commission has been especially vigorous and effective in tackling GAFA's market power: after having fined Google Shopping more than €2 billion; Google Android more than €4 billion; and Google AdSense more than 1 billion, the European Commission has decided to launch 'in-depth investigations' against Amazon. Fines are looming.
The European tech backlash has crossed the Atlantic thanks to the dual driving forces of so-called antitrust populism: i) political discourse using simple language against perceived economic elites, ii) academic work aimed at reviving the populist roots of the Sherman Act through the New Brandeisian Movement. Self-proclaimed populists, the New Brandeisian Movement hopes to use antitrust law as a vehicle to address an infinite number of socio-political issues in the American economy, such as lobbying control regulations, income inequality, plain democratic debates, inexistent labour laws, fears of the liberal-minded Silicon Valley, angers from rural America, and attachment to smallness in enterprises with mum-and-pop stores preferred over economic consolidations and digital concentrations.
Bolstered by the European tech backlash, the American counterpart joins the historical incitements for regulatory convergence across jurisdictions for the enforcement of antitrust laws. The long-awaited benefits of such regulatory convergence may not, however, be those we initially expected to see arising. For several years, American enforcers and scholars have called for regulatory convergence with their European counterparts on the basis of more rigorous economic analyses. Regulatory convergence may ultimately advance between American and European antitrust enforcers but, regrettably, with less rigour in economic analyses and likely with more politically-driven discretionary power.
Dr Aurelien Portuese is a Senior Lecturer in Law at St Mary's University, an Adjunct Professor in Law at the Global Antitrust Institute of George Mason University, and a Research Fellow at the Catholic University of Paris.