INTRODUCTION
The authorities now be steering the big tech companies under new guidelines and regulations to reinforce the anti-monopoly boundaries on such giants in order to maintain uniformity in the market. Now, under these new rules and regulations, the core focus will be on the economic and digital platform for not engaging in any of the monopolistic practices that may obstacle competition in the market. The new-fangled rules and regulation will now be putting regulatory and political pressure in such big techs for not engaging in any unlawful practices that may hurdle the competition in the market. The utmost provisions falling within the domain of these rules and regulations is to keep an eye check on these tech giants in not sharing or producing any insensitive or illegal content that may create any impairment within the consumer at large.
POSITION IN JAPAN
The National Diet of Japan has legislated an Act- ‘Improvement of Transparency and Fairness in Trading on Specified Digital Platforms’ which is yet to be implemented by the Japanese authority, may be by the spring season of the existent year i.e. 2021. The foremost object of this Act would be to keep an eye check and tapping supervisory and political compression especially on the Specified Digital Platform Providers in order to encourage the impartiality and clearness in the mechanism of such companies. Now, it has not been decided yet that who will be the companies instituting under these specific digital platforms, but once executed, then would be surely designated by the Ministry of Economic, Trade and Industry (METI), till the time authorities for sure drive a crisscross on GAFA- Google, Amazon, Facebook, Apple and also the domestic platforms like Yahoo! Japan. The Japan Fair Trade Commission (JFTC) will also be under operation in order to keep a check on the companies not engaging in any anti-competitive practices like- abusing its dominant position or indulging in any discriminating contracts and much more.
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WHAT ARE THE KEY REGULATIONS UNDER THE JAPAN GUIDELINES?
The Act states that the Digital Platforms will be obligatory to perform its operations and actions without creating nay hindrances in the market. Some of the key takeaways that the Act lays down in regulating such big techs in order to maintain parity in the market are-
· The requirements enshrined under the Act has made an obligatory regime on the Digital Platforms to disclose the information to the third party sellers and consumers. The focal impression behind in undertaking so is to create a transparency and evenhandedness in the market so that these big tech giants should not participate in any unfair or unauthorized arrangements including refusal to deal.
· The gathering of data of third party sellers and consumers by these tech giants would now be under a perceptiveness, by commanding certain boundaries on such companies i.e. how the data is stored, for what purpose- illegal or unlawful, taking the consent would now be obligatory in order to evade any mistreatment.
· There would be reasonable procedures and schemes under the new strategies. The companies incoming into any deal or proposed transaction are bound to notify for the same to the METI and also those companies if they are not designated but falling within the ambit of such criteria would also be mandatorily submitting the report of its compliance and self-assessment to the ministry.
· The METI has given a control to the JFTC to initiate the proceedings on its own if it thinks that any transaction or performance by these big techs is hovering any antitrust scrutiny in the market for example if any company is exploiting its dominant position in the market or entering into any unlawful contracts or arrangements which are creating nay disturbance in the market.
Now, the companies failing to notify the report to the ministry would be spanked with a heaviness penalty that would be 1 million JPY and any untrue or fictitious information furnished by the big techs would be slapped with 5,00,000 JPY penalty under these guiding principles.
POSITION IN UNITED STATES
The US competition authority i.e. Federal Trade Commission will now be knocking the political and supervisory pressure on the big tech giants- “FAANG” for their regular Anti-Competitive conduct and unfair business practices seen over the past years till date. Now, the antitrust committee will put an eye on such big tech companies and safeguard the uniformity in the market so that the slighter companies could compete justly, thus encouraging the impartial competition in the market.
The one of the most significant initiative taken by the US Parliament is to revoke the section 230 of the Communications Decency Act which was in the favor of these big tech giants. The section states that it provides the protection to these big tech giants against any legal liability for using the user’s content.
But now under the new-fangled regulation, the authority has commanded that the section 230 should be immediately revoked thus backing the big techs and creating a more commanding and political pressure on such companies.
MERGER REGIME
Under the new guidelines, the big tech companies or the companies with giant market share or dominant in nature would be obligatory to notify each and every transaction to the commission that it is for the public wellbeing, and, if not, then would be presumed to be anti-competitive in nature. The leading platforms are bound to notify every transaction for all the deals irrespective of meeting the regulatory thresholds.
IMPOSITION OF FINE
The new rules and regulations have given power to Department of Justice and Federal Trade Commission to impose fine upto 15% of a company’s annual revenue if such companies violates antitrust rules.
JUDICIAL ANNOUNCEMENTS
❖ Department has filed a suit against Google for violating provisions of Sherman Act
The US- DOJ along with other departments has filed a civil complaint against Google for engaging into anti-competitive practices in search and advertising sector- exclusive distributions, tying in arrangements, entering into elongated agreements with Apple, providing favored treatment to its own gear- thus violating the provisions of the Sherman Act. It is also been alleged that Google being a dominant position in the market is abusing its powers engaging in exclusionary practices in search and advertising market. The commission has said that the Google, if proven, for breaching such antitrust regulations would be slapped with a hefty fine that would be three times more than it imposed by the EU regulators.
❖ Epic-Apple battle still going on
Epic Games has filed an antitrust suit in the United States District Court against Apple for abusing its dominant position in the market by compelling developers to use Apple’s in-app payment systems – which charge commissions of up to 30% from its app developers and giving privileged handling to its own applications. The EU regulators have also opened an investigation against Apple for the same grievance filed by the Spotify and e-books. If proven, Apple would be imposed with the bulky penalty for engaging in such a demeanor in the market.
AUSTRALIA’S MOVE
The Australian Government has also issued certain guidelines and parameters for knocking a supervisory pressure on the big tech companies especially Facebook and Google for engaging in abusing their dominant power in the media and digital segment. The new-fangled regulations will now be focusing especially on the news media and digital bargaining code i.e. as it has been gotten by the authorities in the past years that both the companies have massive market share in advertising the news and media on their platforms. The study says for every $100 spent on online advertising, Google captures $53, Facebook takes $28 and rest is shared with the other platforms. As it is now crystal clear that such giants are in the dominant position and have been misusing their power by limiting blockades for the slighter companies and fresh entrants, so in order to eradicate such a concern and to make a fair play in the market, the Australian competition watchdog (Australian Competition and Consumer Commission) will be keeping an eye check on such big techs for not abusing their dominant position in the market.
The watchdog will be regulating the merger regime- the big techs entering into the proposed deals or transactions would be bound to report to the commission if it believes that such a transaction could diminish the competition in the market.
CASE LAW
· Battle between Google and Facebook with the Australian Government
The Australia’s Competition Watchdog has commenced an inquiry against Facebook and Google for impacting the competition in the news and media division by abusing their dominant position in the country. The commission has commanded the platforms to pay for the news content as social media platforms are the key source of sharing information, thus, these platforms are building an entry barrier and hindrance for the newspapers and publishing channels (small scale competitors) around the country.
Furthermore, the Google and Facebook earlier submitted that they will block the sharing of news from their platform in the country if the commission executes this proposed bill and Google will also remove the search engine for the country. But later on after too much of a contentious and debatable discussions, the Google has launched the new Showcase facility and has tied up with various small news channels by paying them for the news content. Now, the current scenario will be reviewed by the commission at least for 12 months and will take an appropriate action if any anti-competitive conduct arises in the future.
COMMENT
Imposing the lot of political pressure on such giants could launch a new era in the antitrust regulation in the tech sector. The authorities not only in these jurisdictions but across the globe have taken a welcoming footstep in regulating such techs for their unlawful behavior. If executed, then such giants would be fronting an extensive antitrust scrutiny by the authorities.