Ariel Ezrachi

The prevalence of third-party tracking in our modern ecosystem cannot be ignored. Trackers, on our websites and apps, enable multi-sourced data gathering, at distinct volume, velocity, verity and veracity. While operated by numerous operators, the majority of these trackers are controlled by a handful of data giants. In this paper we consider the rise and growth of this industry, the power it has bestowed on a handful of operators, and the possible implications to consumer welfare and competition.

Innovation is generally seen as good. Promoting innovation especially in the digital economy is often deemed vital. Increasing the level of innovation, after all, can promote sustainable development, economic growth, prosperity, and citizens’ overall welfare. So how can policy makers spur innovation in the digital economy? While there is no simple recipe, this study explores the interplay between innovation and the digital economy. Through the various prisms of economic theory, market data, policy, and law, the study reveals the complex links between innovation and market concentration, the key trends of, and obstacles to, innovation, and ways policy makers can promote innovation in modern digital markets. Our first angle is a familiar one -- the theoretical economic literature on market characteristics and innovation. The general economic consensus is that by delivering technological improvements, and new products, services, and business models, innovation forms a central pillar to efficient markets and a key to future prosperity and economic growth. Innovation processes can stimulate dynamic markets, enhance citizens’ welfare, and help offset otherwise diminishing marginal returns. The relationship between innovation and market dynamics, however, has been subjected to a range of theoretical assumptions. Under the Schumpeterian hypothesis, market concentration is understood to allow internalization of the rewards flowing from innovation efforts (increase monopoly rents). Firms innovate to escape competition. Under the Arrowian hypothesis, competitive pressure forms the key to investment in innovation, and that significant market power disincentivizes investment in further innovation. More recent scholarship notes the complex relationship between market concentration and innovation. Notable is the inverted U-shaped relationship between competition and innovation levels. Philippe Aghion and his co-authors suggest that an increase in competition (from an initial low position) increases the rate of innovation, but that high levels of competition decrease the rate of innovation. The reason for the inverted-U shape is that when there is not much competition, firms have little incentive to innovate. Increasing competition, accordingly, will increase the average innovation rate. But once competition is intense, increasing the competitive pressure further may result in a slower average innovation rate. In addition, other variables may impact the investment in innovation, including industry and company characteristics and the political/industrial dimension. After this familiar angle, we examine how innovative are many markets today. Our second angle offers a macro view of the current level of innovation in the EU and US. It focuses on the supply of innovation – that is the extent to which companies invest in research and development of new products, systems, and processes. While the dynamism of many digital markets may suggest heavy investment in innovation, macro data give rise to concern. From high above, it appears that competition is below optimal levels in many US sectors, and to a lesser extent, in the EU. The data from this angle suggests that many markets are becoming more concentrated and less competitive. Profit margins are widening, with a few firms reaping a significant share. Innovation levels also appear sub-optimal. The reduction in competition in the US, one recent economic paper points out, also coincides with a decrease in labor’s share of profits, a slowdown in output and GDP, a decrease in the startup rate of new firms, due to higher barriers erected by incumbents, and an increase in wage inequality. One noteworthy study is the OECD Digital Economy Outlook 2017. The OECD acknowledges information and communication technologies as enablers of innovation but notes emerging signs that business dynamism and entrepreneurialism are falling short of their potential. The OECD further notes that while small start-ups are better placed to seize new opportunities offered by digital technologies, access to capital and high finance costs may undermine this potential. Across the Atlantic, innovation also appears to be lagging behind its potential. The head of the Council of Economic Advisers under the Obama administration similarly noted a slowdown in the creation of new businesses, with top firms capturing more market shares. Of concern are signs that higher returns to capital have not been associated with an increase in investment. Businesses in markets with rising concentration and less competition are investing relatively less. Several 2018 empirical papers also reflect these disturbing trends. There is a significant increase of markups between prices and marginal costs of publicly traded firms in developed economies. The rise in measured markups is associated with increased market power and market concentration. In line with the inverted U-shaped relationship, an IMF study finds that high markups are correlated initially with increasing and then with decreasing investment and innovation rates. This non-monotonicity is more pronounced for firms that are closer to the technological frontier. More concentrated industries also feature a more negative relation among markups, investment, and innovation. So from our macro view, we see that increased concentration levels and less competition are generally associated with greater profit margins, but not greater investment in innovation. In fact, indicators suggest a decrease in investment, in line with an inverted U-shaped relationship. Our third angle looks at several emerging trends in the digital economy. Among the key characteristics, noteworthy are the use of data as a key resource for innovation in the digital economy and the ongoing investment in Big Data. Data acts as a significant engine for innovation, but can also act as a barrier in inhibiting entry and growth. We observe a positive feedback loop that may help powerful firms become stronger, as the weak get weaker. Beyond data, the exponential growth of the Internet and mobile communications has seen a proliferation of platforms that often act as intermediaries and as such occupy a central junction for users and service providers. The access to data on users and suppliers places platforms in a favorable position that, at times, act as gate keepers in industries characterized by network effects. Data-driven network effects, may at times, tilt the market in favor of a single winner, which thereby is significantly protected from competitive pressure. These trends can directly impact citizens’ welfare and choices. They may facilitate control over the users’ interface. Moreover, they may enable providers to affect the use of, and access to, competing services, increase friction in switching to alternatives, reduce awareness of outside options, and promote the platform’s own services. Through the use of personal data and advanced algorithms, platforms and their suppliers may control to a greater extent the digital paths seen and used. So, what is the price we might pay if a dominant platform suppresses some types of innovation? Our fourth angle examines the implications of sub-optimal innovation levels. At least two perspectives emerge. The first, being narrow, acknowledges that many markets today may not be as innovative as their current potential, but views this as a transitory state. Policy decisions today can be used to affect future levels of investment in innovation and help optimize markets for innovation. The second, wider perspective, offers an evolutionary view. The level and nature of innovation, being path dependent, may not necessarily return to their natural state. Under this evolutionary perspective, current impediments to innovation can affect not only future levels of innovation but also the types of innovation. Basically, some types of innovation may be lost forever. As a result, today’s policy decisions affect not only future levels of investment, but also the paths for innovation and the nature of innovation. This view puts greater responsibility on policy makers to preserve competitive portals, which can have a crucial role to play in the shaping of tomorrow’s innovation. Given these potential stakes, what can policy makers do to promote innovation in the digital economy? We offer policy makers three key perspectives – the supply of innovation, the demand for innovation, and the nature of innovation. Our fifth angle assesses the variables that affect the supply of innovation. The supply of innovation, as we synthesize from the literature, will likely depend on four key variables: market contestability (markets need to remain contestable for innovation to flourish), appropriability (the extent to which a firm can capture the value created by its innovation and protect the competitive advantage associated with it will increase the incentive to innovate), synergies (for instance, the combination of complementary assets necessary to engage in R&D will enhance the ability to innovate), and the nature of innovation. From this angle we can see the complex relationship between market structure, and the levels and nature of innovation. No optimal ratio exists among these variables to increase the supply of innovation. Some degree of market power, at times in some industries, serves as an incentive that stimulates innovation (appropriability). But while greater concentration might result from a firm’s welfare-enhancing innovation, one cannot say that increasing market concentration, by itself, will necessarily spur welfare-enhancing innovation. As we also see, innovation can continue to occur in heavily concentrated markets, but the nature of innovation might change. For example, open systems, relying on user-driven innovations, might slowly close after a few firms dominate the industry. Users, rather than develop and modify products and services for their own use, rely instead on the dominant firm’s innovations. Finally, the primary beneficiaries from the innovation might change. Innovation may simply reinforce the dominant platform’s power and user lock-in. After viewing how these key variables can affect the supply of innovation, we switch perspectives to explore the demand for innovation. Using five stages in the users “innovation-adoption process,” we identify how large platforms can influence the demand for, and rate of adoption of, different kinds of innovation. Adoption of several key technologies in the past took decades. The good news is that with dominant platforms, the adoption rate for some technologies can be shortened to years, if not months. But just as powerful platforms can help users through the five stages in deciding to adopt an innovation, they can increase barriers in one or more of these stages, thereby impeding the technology’s adoption. Tactics used to thwart an innovation’s adoption may include limiting the potential user’s exposure to competing technologies, the use of defaults to take advantage of status quo bias, or the use of data-advantages to reduce users’ likelihood of adopting competing products or technologies. Among our examples is how Google and Apple successfully thwarted for years ad blocking technology for smartphones. The insights from this sixth angle illustrate how a powerful gatekeeper can influence users’ adoption of innovations. As a result, one should not solely focus on contestability, appropriability, and synergies that affect the supply of innovation. Policy makers must also consider the pathway of innovation from the angle of user adoption of that technology. Dominant firms can reduce the demand for, and adoption of, technologies, even when markets are contestable, synergies exist with other innovative products, and the dominant platform does not seek to appropriate any gains from that technology. We often assume increasing innovation levels improves our collective well-being. But does it? Our seventh angle looks beyond the veneer of innovation. From this vantage point, we consider how characteristics of the digital economy may impact the nature of innovation. Because dominant platforms can promote some innovations, while thwarting other innovations that threaten their dominance or business model, one might ask whether innovations are always good? Does increasing the level of innovation necessarily increase overall welfare? Not always. In examining the nature of innovation, we describe three categories of innovation: positive, negative, and mixed. We explore several examples of this negative innovation. Firms employ these innovations to maintain or obtain monopoly power without benefitting consumers. At times, they use this negative innovation to transfer wealth from consumers to themselves, or to exclude competitors. From this angle, we consider how changes in market characteristics may impact the nature of innovation and the possibility of it being exploitative, exclusionary, or cannibalistic. Several key takeaways emerge from this perspective. First, the nature of innovation may take a path that runs against societal goals and benefits a few at the expense of many. Second, increasing the overall level of innovation will not necessarily increase overall welfare. Third, while policy makers generally do not want to chill the incentives to innovate, some types of innovation should be chilled. Fourth, policy makers cannot assume that market forces or regulators will generally deter negative innovation. Some types of negative innovation may be beyond the scope of antitrust, privacy, or consumer protection law. Even when they aren’t, enforcers may be overly deferential to the claimed innovation. Finally, developing the tools to determine when innovation is positive, negative, or mixed, what conditions foster the myriad forms of negative innovation, and implementing policies to deter negative innovation will be critical. Thus, the goal for policy makers is to not simply increase the overall level of innovation, as that will not necessarily increase overall welfare. Ideally, the regulatory framework would reduce firms’ incentive/payoffs to engage in negative innovation, while promoting (or at least not chilling) their incentive to invest in innovations that generally promote overall welfare. So what is the recipe to achieve this balance? We would caution policy makers about anyone peddling a simple recipe. In our final part, we review several of the available policy instruments used to facilitate innovation. Inevitably, the level, nature, and direction of innovation may be influenced by a variety of regulatory policies, including in the digital economy, privacy, consumer protection, competition and state aid, education, taxation, intellectual property, access to capital, and property law. Thus, boosting positive innovation requires a comprehensive policy approach. With these challenges in mind, we explore the benefits and limitations of several available policy and enforcement measures. We consider it preferable to focus future intervention on ex-ante measures – aimed at creating a regulatory and economic landscape, which helps open the competitive portals for positive and welfare-enhancing mixed innovation. Even then, one should be aware that any form of intervention night influence the identity of the winners and losers of tomorrow. Ex-post, case-by-case intervention should be limited primarily to instances when actions by companies are clearly in breach of existing legal regimes such as competition, privacy, consumer protection, or intellectual property laws. Whenever reaching into the tool box, policy makers should assess the challenges and risks associated with intervention or the lack of it. It therefore underscores the need for a measured and careful approach. On one hand, excessive intervention comes at a cost and could chill innovation, hinder disruptive positive innovation, undermine investment, increase the burden on smaller operators, and determine the likely winners and losers. On the other hand, non-intervention should not be seen as benign, as it too reflects a policy decision on the likely winners and losers under the status quo, and may be detrimental to welfare-enhancing innovation. The goal is to optimize the preconditions for welfare-enhancing innovation, while accounting for the legal, business, technological, and market environments. Ultimately, there is no easily available recipe for policy makers on how to promote the good forms of innovation, while deterring the bad. Indeed, one key takeaway from this paper is that such a recipe is illusive, and would likely need to be continuously updated. In a rapidly evolving environment, the task is far from simple. Nonetheless, the seven angles outlined herein can help policy makers refine their tools to promote welfare-enhancing innovations. But in this pursuit, it is worth reminding ourselves that innovation, like competition, is not an end to itself. It is simply one of many means to promote overall well-being. Citizens may sacrifice innovation, at times, to further other, more important, values, including privacy and autonomy, necessary for our well-being.

New competition dynamics in the digital economy raise questions as to the normative scope of competition enforcement. The question - ‘Is this a competition problem?’ has become common in the face of new business strategies, new forms of interaction with consumers, the accumulation of data and the use of big analytics. This paper seeks to outline the goals and values advanced by European Competition law, and their application to digital markets.

Algorithmic collusion is a hot topic within antitrust circles in Europe, US and beyond. But some economists downplay algorithmic collusion as unlikely, if not impossible. This paper responds to these criticisms by pointing to new emerging evidence and the gap between law and this particular economic theory. We explain why algorithmic tacit collusion isn’t only possible, but warrants the increasing concerns of many enforcers.

E-commerce promises to bring us closer to some economists’ ideal of perfect competition – where ample choice, better quality and lower prices reign. The new online world promises to reduce entry barriers and search costs, and increase transparency and market access. But a closer look reveals an imperfect online environment. Following the wave of innovation and competitiveness introduced by e-commerce are powerful anti-competitive undercurrents. More online markets are exhibiting increased concentration, barriers to expansion and entry, and anticompetitive strategies. At times, these anticompetitive strategies may be based on contractual frameworks – such as parity clauses and online marketplace bans. Indeed, the European Commission’s sector inquiry on e-commerce noted the increased use of selective distribution systems online ‘to better control their distribution networks, in particular in terms of the quality of distribution but also price.’ It also noted increasing ‘restrictions on the use of price comparison tools and exclusion of pure online players from distribution networks.’ Moreover, licensing practices may impede entry by new online business models and services. Rather than promoting the flow of goods and services across the EU, the sector inquiry found that ‘almost 60% of digital content providers who participated in the inquiry have contractually agreed with right holders to “geo-block,”’ which ‘prevents consumers from purchasing consumer goods and accessing digital content online from other EU Member States.’ At other times, competition may be at risk due to other potential anticompetitive strategies, from algorithmic tacit collusion to abusive behaviour by powerful providers or gatekeepers. This paper explores three emerging antitrust threats in the online world -- algorithmic tacit collusion, behavioural discrimination, and abuses by the emerging super-platforms – and the enforcement challenges they raise. We note the growing realisation by competition agencies as to the imperfections of the online environment, the ability to utilise new technologies to dampen competition, and additional risks of data-opolies.

“All you need to do is say,” a recent article proclaimed, “‘I want a beer’ and Alexa will oblige. The future is now.” Advances in technology have seemingly increased consumers’ choices and opened markets to competition. As sales migrate from brick–and–mortar shops to online sites, consumers seemingly are getting more of what they desire, including better prices and quality. And yet, looking beyond the ease of online shopping, several emerging threats arise, including algorithmic collusion, behavioral discrimination and abuses by dominant super–platforms. Thus, a more complex reality exists. To see why, this Article examines the emerging frontier of personal digital assistants. These helpers are being developed by the leading online platforms: Google Assistant, Apple’s Siri, Facebook’s M, and Amazon’s Alexa–powered Echo. These super–platforms are heavily investing to improve their digital assistant offerings. We show how network effects, big data and big analytics will likely undermine attempts to curtail the digital assistant’s power, and will likely allow it to operate below the regulatory and antitrust radar screens. As a result, rather than advance overall welfare, these digital assistants—if left to their own devices—can undermine our collective welfare. But the harm is not just economic. The potential anticompetitive consequences from these assistants will likely take a toll on privacy, well–being and democracy. For those who grew up watching The Jetsons, the prospect of a personal helper might seem marvelous. Many already rely on Google’s search engine to find relevant results, Facebook to identify relevant news stories, Amazon for book recommendations, and Siri to place phone calls, send text messages, and find a good restaurant nearby. Many also already benefit from basic digital assistants. Apple iPhones users may instruct Siri to call their family members on speakerphone. Siri can “predict” what app users might want to use, which music they would like to listen to. Navigation apps can anticipate where the individual is heading throughout the day and provide traffic updates and time estimates. Even one’s favorite coffee outlet may send a notification and prepare the loyalty card on one’s device whenever one is near an outlet. Now personal digital assistants—or “digital assistants”—are seeking to interact with users in a human–like way. With its increasing sophistication, a digital assistant promises to transform how individuals access information, communicate, shop, are entertained, control smart household appliances, and raise their children. The digital assistant will also undertake mundane tasks and free our time. Amazon’s voice recognition personal assistant, Alexa, for example, can already perform many tasks. Alexa can shop for its users (knowing everything its user previously bought through Amazon); plan one’s mornings, including accounting for upcoming meetings, traffic, and weather; entertain one with music; suggest movies, shows, or audiobooks; and control one’s house’s smart appliances. In 2016, Google showed a video of a suburban family undergoing its morning wakeup routine: “The dad made French press coffee while telling Google to turn on the lights and start playing music in his kids’ rooms. The mom asked if ‘my package’ had shipped. It did, Google said. The daughter asked for help with her Spanish homework.” As the digital assistant—powered by sophisticated algorithms—learns more about its users, their routine, desires, and communications, it can excel in its role. In a human–like manner, it can be funny—at just the appropriate level—and trustworthy. These digital assistants can provide more than information and services; they can anticipate one’s needs and requests. After all, being privy to so many of its users’ activities, the assistant will become their digital shadow. As Alphabet’s CEO noted, “[y]our phone should proactively bring up the right documents, schedule and map your meetings, let people know if you are late, suggest responses to messages, handle your payments and expenses, etc.” The digital assistant, with their users’ trust and consent, will likely become the key gateway to the World Wide Web. Consumers will happily relinquish other less personal and useful interfaces, and increasingly rely on their digital assistant to anticipate and fulfill their needs. With this unique position of power, the digital assistant will act as a gatekeeper in a multi–sided market. And yet, despite their promise, can digital assistants actually reduce one’s welfare? Might their rise reduce the number of gateways to the digital world, increase a few firms’ market power, and limit competition? And if so, what are the potential social, political, and economic concerns? Our Article seeks to address these questions. Part II discusses the current race among Google, Apple, and Amazon to control as many aspects of the online interface and reap the associated benefits. The stakes are high, given several data–driven network effects, that will likely lead to one or two digital assistants that primarily undertake most people’s tasks and make the majority of decisions. So what are the implications of this winner–take–all contest to be the chief digital assistant? Part III considers the toll a dominant digital assistant can have on competition, democracy, and privacy. Given these risks, one would expect and hope for a “virtuous assistant”—a class of independent assistants, developed by independent firms with the users’ personal interests paramount. Part IV identifies several factors that favor one of the four super-platforms (Google, Apple, Amazon, and Facebook) capturing the digital assistant market, and disfavoring the independent virtuous assistant. As market forces will not necessarily prevent and correct the harms we identify, Part V outlines several issues and challenges confronting antitrust enforcers. Part VI concludes.

When government officials argue for purity, one would expect raised eyebrows. But few question competition officials who, in speeches in foreign lands, praise the “purity” of competition law. They warn the hosts of polluting competition policy with social, ethical, and moral concerns. They warn of industrial policy, regulation, and rent-seeking. After the hosts provide dinner, the competition officials leave for the airport, where they prepare the same speech for another audience. The hosts will politely agree on the key objectives that competition policy should promote, but beneath this veneer, ill-defined terminology, open-ended goals and differences in enforcement philosophy remain. Differences, in one’s understanding of the ends of competition law often transform into a ‘purity battle’ – the claim that competition analysis has been polluted by some, and that a pure approach, as propagated by others, would deliver better, optimal results. Often, these claims accompany large transactions, state aid, and foreign jurisdictions, possibly threatening the domination of national champions through enforcement of their competition laws. Sometimes these claims will be made by the competition agency. Sometimes by politicians or leading corporations. At times, the true source of the claim – politics, business, law or economics – may be hard to ascertain. This is not to say that purity arguments are without merit. A consensus exists that competition law cannot be all things to all people: a panacea for every policy concern, ranging from labour to the protection of national champions. And yet, the pretence of purity may be misleading as it propagates a mirage of objectivity, clarity and analytical superiority – traits that are not always present. Indeed, competition law is often perceived as a stable discipline. In fact, one is often reminded that competition law must be based on economic considerations and reject external social, or political objectives. This paper argues that this appealing view – which embodies a sense of purity – is merely an illusion. It ignores the ‘sponge-like’ characteristics of the law – its susceptibility to national peculiarities originating in its design and evident in its application and its exposure to intellectual and regulatory capture. While the idea of a stable, predictable and economically-based antitrust discipline is in all of our interests, these traits are not inherent to the law. They are forced onto the sponge in an attempt to ‘discipline’ its natural tendencies, and propagated as reality, to support its legitimacy.

Technological advancements, big data and big analytics have changed, and will continue to change, the dynamics of virtual competition. Notably, they have significantly affected pricing strategies, including the stealth-mode use of dynamic personalized pricing. Retailers and service providers can approximate consumers’ reservation price and engage in “almost perfect” price discrimination. Among the key market conditions necessary for successful online discrimination are access to personal data, ability to predict the consumer’s willingness to pay, and ability to monitor and limit available outside options. When observing discrimination in our modern online environment, notable is the shift from third-degree, imperfect price discrimination to near perfect, or first-degree, price discrimination. Online sellers, in tracking us, collecting data about us, and segmenting us into smaller groups can better identify our reservation price—our willingness to pay.

The progressive, anti-monopoly, New Brandeis School of antitrust is making the news. Its rise follows mounting evidence indicating greater concentration, greater profits in the hands of fewer firms, and greater wealth inequality world-wide. Driven by concerns as to the competitive dynamic (or lack of it) in many markets, it advocates for more intervention. Signs of this trend are evident across the board. More antitrust enforcers and courts are emphasizing fairness. Liberals and conservatives are increasingly warning that consumers are not benefitting from the (meager) competition in many markets. Their concern is that the current state of competition law (and crony capitalism) benefits the select few at the expense of nearly everyone else. Even the laissez faire “Chicago School” ideology has lost some of its appeal, most notably at the University of Chicago. Furthermore, legislation in the U.S. is being proposed to restore the Clayton Act to its original purpose. Against this wave, others, in advocating antitrust’s purity, warn of an overly inclusive approach to competition law. Ironically, this claim sometimes arises in conferences sponsored by monopolies, and at times by speakers whose work is funded directly or indirectly by these same monopolies. In arguing for a “pure” antitrust, they endorse, outside of cartels, a “light” touch enforcement, if any. They warn about enforcement chilling pro-competitive behavior, and undermining the market’s ability to self-correct. They are content with the lack of antitrust enforcement against monopolies in the U.S., critical of enforcement actions in the EU, unconcerned about the trend toward concentration, and reject fairness or distribution concerns as part of competition policy. The debate has intensified with the rise of virtual competition. On the one hand, non-interventionists state that the threat of disruptive innovation pressures even dominant firms to innovate and compete. This, they argue, justifies the light, if any, touch. Others, on the other hand, warn of the increased concentration and rise of gatekeepers, which benefit from network effects, and access to big data and big analytics. While monopolies of the past might subject us to higher prices and poorer quality products, abuses by today’s super-platforms will affect not only our wallets. They can affect the news and entertainment we receive and ultimately, our privacy, well-being, and democracy. So what is going on here? One may attribute the increasingly polarizing debate to an ideological divide: between those who believe markets necessarily self-correct and those who believe intervention is necessary to safeguard long-term innovation and prevent the abuse of market power. Increasing the friction are other divisions: Between those who believe that the rising economic consolidation is yielding significant efficiencies and those warning about the detrimental effects that economic consolidation has on the person, the family, the community, and society; between those who believe that what is easily measurable, largely counts, and those, like economist F.A. Hayek, who dismiss the notion that only what is countable primarily counts (especially when many goods and services today are ostensibly free, and where our data and privacy are the cost). Ultimately the divide is over the soul of antitrust: Is antitrust solely about promoting some form of economic efficiency (or as cynics argue, the interests of the powerful who hide behind a narrow utilitarian approach) or the welfare of the powerless (the majority of citizens who feel increasingly disenfranchised by big government and big business)? Not surprisingly, with so much profit (and power) at stake, corporate interests are fueling the debate. Some who favour a narrow technocratic antitrust policy – including some dominant firms, their investment bankers, and their legal and economic experts - want to keep the M&A pipeline open and minimize the relevance of ex-post intervention. For them competition policy has evolved to its optimal point. Some who favour more intervention do so selectively when it promotes their commercial interest: Encouraging a particular enforcement action which may help improve their (or their client’s) market position and profitability, but not society overall. In an environment so captured, those in search of purity should look elsewhere. The reality is that ‘competition law’ has never been, nor will it ever be, pure from normative political, social and economic values. Ultimately it comes down to the values we want to promote and our belief in how competition works. Granted, antitrust cannot cure every ailment. A consensus exists that competition law cannot be all things to all people. Indeed, other vehicles, such as data protection law, may better remedy some of today’s concerns. And yet, competition law cannot be Orwellian -- sanctioning anticompetitive agreements, monopolistic abuses, and greater consolidation in already concentrated markets, all for the sake of promoting a vague “consumer welfare” objective. Also counselling against antitrust’s “purity” is that its objectives and legal standards often reflect trade-offs. For example, a society may sacrifice some efficiency in media markets to promote a vibrant marketplace of ideas. So, antitrust law does not exist as a Platonic ideal out there for us to find. Rather it is for us to design. As we design, we must return to antitrust’s core values: what do we, as a society, want to promote? What South Africa, the EU, the U.S., and other jurisdictions seek to promote may differ at the margins. Calling one country’s antitrust goals impure hardly advances the debate. While differences may exist at the margin, ultimately, competition law worldwide can advance several common political, social and economic goals. One would hope that our common optimal goal will be to promote our welfare in an economy that is inclusive (i.e., benefits many citizens, not just the wealthiest 1 percent), protects the privacy interests of its citizens, promotes overall well-being, and promotes a healthy democracy.

Winner of the 2016 ‘Concurences’ prize for best article on collusion.

The Agency Effectiveness Study explores a wide range of the daily concerns faced by competition agency heads and their staff, with an emphasis on the formal and informal ways in which they are addressed. Managing and operating a competition agency is very much a process of learning-by-doing. The aim of the study is, therefore, to capture and make available the know-how that competition agency officials accumulate during their service. In particular, it aims to provide a candid account of the practical challenges encountered and solved by heads of agencies and their staff as they navigate through changing legal, social, political, and organizational landscapes. As part of the study, current and former agency heads and competition law officials, of both young and more established agencies, were interviewed and asked for their views on a wide range of topics linked to agency effectiveness. A qualitative method was adopted to capture the knowledge and first-hand experience of competition officials. The data were collected through both face-to-face interviews and questionnaires with the aim of exploring practical, managerial, and structural challenges, which may influence an agency’s effectiveness. We note that by virtue of the employed methodology, the study has natural limitations. The information captured is likely to have been influenced by the subjectivity of the individuals and possible biases. To minimize these effects, participants were drawn from a wide range of agencies from around the world—both comparatively young and more established. These included agencies from Europe, North America, Latin America, Asia, Africa, Middle East, and the Caribbean. To encourage frank discussion, the identities of contributors are not included in the public report. These confidentiality protections were put in place to reassure participants that they can freely provide a candid account of their experiences without those experiences being directly linked to a jurisdiction or an individual. The study’s findings depict a challenging reality facing competition officials in the day-to-day running of a competition agency. It is this complexity that the study hopes to help untangle, by offering competition agency officials the benefits of insights from current and past competition agency leadership. The fruits of the study are aggregated in this report under nine headings. Each section includes a summary of the main points, as well as a selection of quotes from officials who participated in the study. The JAE editors, Dr Maria Ioannidou, Dr Julian Nowag, and Mr. Hugh Hollman, acted as the study coordinators and contributed immensely to the collection of the data and the formulation of the report. We hope that this study will constitute a repository of experience for the day-to-day management of competition agencies, and provide a source of inspiration to current and future agency heads around the world.

The strive for tighter control of distribution, quality and price - has led an increasing number of producers to include restrictions on the use of online marketplaces in their selective distribution agreements. This paper considers the effects of such restrictions and the legal approach they call for. While acknowledging the legitimacy of proportionate restrictions on distribution, the article illustrates how an absolute ban on the use of online marketplaces may have a detrimental effect on market transparency, price competition, entry and expansion. The discussion illustrates how the legitimate interests of producers may be protected through less onerous means, without the increase in consumers’ search costs and the dampening of price competition. With that in mind, it is argued that these restrictions should be analysed on a case-by-case basis and should not benefit from the Vertical Block Exemption. Furthermore, the article considers whether absent proportionality and objective justification, the harmful effect of online marketplace bans, justifies their condemnation as anticompetitive by object.

“This is a groundbreaking, critical work—a major contribution to the field of competition law.”—Frank Pasquale, author of The Black Box Society “Ezrachi and Stucke provide a compelling analysis challenging the orthodoxy that modern technology empowers consumers. Their findings will send a shiver down the spine of consumers, businesses, public policy makers and anyone working in the competition field. Virtual Competition is a fast-paced, mind-boggling thriller that you can’t put down; a thriller in which we are all set to be the victim.”—Alan Giles, Saïd Business School, University of Oxford “Virtual Competition provides an intriguing and provocative look at the potential dark side of big data and big analytics. The debate over digital competition is just beginning, and Ezrachi and Stucke have laid down a marker that is likely to capture wide attention.”—Jonathan Levin, Stanford Graduate School of Business “Ezrachi and Stucke’s insights into data-driven opportunities, collusion scenarios, discrimination, and ‘frenemies’ will help authorities distinguish between true efficiencies and anti-competitive problems, and ensure that most enforcement at least keeps up with technological developments. Forward-thinking competition authorities can use these insights proactively to help craft government policies that ensure that innovation and competition are real, while problems are addressed quickly and thus—hopefully—remain virtual.”—Philip Marsden, Inquiry Chair, Competition and Markets Authority “A thought-provoking, clearly written examination of the coming effects on markets and competition of computer algorithms, big data, big analytics, and ‘super-platforms,’ drawing on real-life examples, on neoclassical and behavioral economics, and on the authors’ deep understanding of U.S. and EU competition law.”—Harry First, New York University School of Law