Comment of the Global Antitrust Institute on the Australian Digital Platform Services Inquiry 2020-2025 – Final Report

ABSTRACT:

The Global Antitrust Institute (“GAI”) submits this Comment to the Australian Competition & Consumer Commission (ACCC) in response to its request for public views regarding the 10th and final report of the ACCC’s Digital Platform Services Inquiry 2020-2025. This Comment is based on our extensive experience and expertise in competition law and economics. As an organization committed to promoting sound economic analysis as the foundation of antitrust enforcement and competition policy, the GAI commends the ACCC for inviting public submissions regarding competition in the rapidly changing digital platform sector. 
 
The ACCC’s request for public input (hereinafter “Inquiry”) follows a lengthy market studies examination of digital platforms that the Australian Competition Authority has been producing since 2017. The GAI has submitted two previous comments to the ACCC’s Inquiries projects on Digital Platforms: GAI Comment on the ACCC’ Digital Platforms Inquiry (2017-2019), Preliminary Report; and GAI Comment on the ACCC’s Digital Platform Services Inquiry’s Discussion Paper for Interim Report No. 5: updating competition and consumer law for digital platform services, (December 2018); and one comment to the Australian Treasury regarding the recommendations of the ACCC’s Digital Platform Services Inquiry, Interim Report No. 5: regulatory reform (September 2022). 
 
Regarding the current final report, and according to the Issue Paper released by the ACCC, the agency is focusing the Inquiry on three different topics: (i) recent international legislative and regulatory developments in markets for digital platform services and their impact on competition and consumers; (ii) major developments and key trends in certain markets for digital platform services (for example, those explored in earlier reports of the Inquiry), and (iii) potential and emerging competition and consumer issues which relate to digital platform services. Apparently, the ACCC report tends to advocate legislative and regulatory developments in Australia to adopt an ex ante digital markets regulation in accordance with Recommendations 3 (Additional Competition Measures for Digital Platforms) and 4 (Targeted Competition Obligations) of the ACCC’s Digital Platform Services Inquiry, Interim Report No. 5, Regulatory Reform.
 
This Comment identifies several economic considerations that suggest caution regarding adoption of novel limitations on competitive conduct by digital platforms – especially ex ante regulation – before greater experience can be obtained with the application of existing antitrust law to digital platforms. That experience will provide a better understanding of the reasons for the success or failure of particular antitrust approaches. This Comment describes economic methodologies that support these suggestions.