Proposed Changes to the U.S. Antitrust Laws - Antitrust Regulations in Digital Economy -

Abstract

Rapid development of digital technology has enabled and fostered the growth of digital economy. Distinctive characteristics of digital platform markets, such as the use of personal data, network effects or switching costs, provide giant platform markets with unprecedented amount of market power, posing new kinds of threats to antitrust regulation. In response, countries with advanced competition laws such as U.S., EU, Germany and Japan are trying to implement stronger regulation targeting certain giant platforms. European Parliament has voted in favor of Digital Services Act(DSA) and Digital Markets Act(DMA) in July, 2022. Germany has also amended its Act against Restraints of Competition(GWB), and Japan has enacted The Act on Improving Transparency and Fairness of Digital Platforms(TFDPA) in May, 2020. In 2021, Competition and Antitrust Law Enforcement Reform Act(CALERA) and five bipartisan antitrust package bills have been proposed in the U.S. House. They offer stronger regulations against giant platform companies including shift in burden of proof or ex ante regulations. Such global trend toward implementation of new regulations is caused by rise of New Brandeisians proposing new standards to replace consumer welfare. They argue that consumer welfare standard has failed in adopting to online platform markets, and protecting competition. Korean legislators have also made several changes to related laws, including an amendment of Telecommunications Business Act(hereinafter Telecommunications Act Amendment) and pre-announcement of amendment on Act on the Consumer Protection in Electronic Commerce in 2021. Korean Fair Trade Commission(KFTC) and Korean Communications Commission(KCC) have proposed Fair Online Platform Intermediary Transactions Act(hereinafter Online Platform Act) and an Act on Protection of Online Consumer Users, respectively. However, proposed bills in Korea differ from global trend, as they have larger scope with Online Platform Act being expected to be applied to about 20 platform companies, and it is unclear whether they can be enforced effectively upon foreign big tech firms, as it can be seen in case where Google has forced Kakao into using only in-app payment in spite of recent Telecommunications Act Amendment. Under such circumstances, currently proposed regulations may fail to reach their goals, and even harm national interest by damaging competitiveness of domestic platforms. Therefore, we need to develop our own standards and measures for online platform regulations. Although current administration is supporting industry self-regulation, as self-regulation does not mean absence of regulation, we still need to seek for regulatory system that balances between restraint of anticompetitive conducts and development of platform economy. This paper will look into the proposed changes to the U.S. antitrust laws, and discussions regarding them. First, analysis of the proposed bills, CALERA and A Stronger Online Economy: Opportunity, Innovation, Choice, will be presented. After that, they will be compared with regulations in other countries. Lastly, review on the discussions regarding the consumer welfare standard, and current international departure from it in competition laws, will be suggested.