Wednesday, February 3, 2021

Op-ed by EU Commission president reflects floating border between censorship and competition issues surrounding digital platforms

Policy makers and opinion leaders increasingly distinguish between the desirability (or at least understandability) of major digital platforms blocking Donald Trump's accounts and the broader implications of private-sector regulators having such enormous power. It already came a bit of a surprise that German chancellor Angela Merkel, never one to like Trump's political positions and style, raised concerns over Twitter's decision to ban The Donald (for my position on impeachment, see this recent post). Last week, European Commission president Ursula von der Leyen said in a German-language op-ed that it might have been "tempting" for Twitter to block Trump's account, but such a far-reaching restriction of the right to free speech shouldn't be decided by companies: the framework must be set by lawmakers.

President von der Leyen's op-ed (which is a reply to an open letter by Axel Springer CEO Matthias Doepfner). Without making a clear distinction between censorship and competition, she acknowledges Mr. Doepfner's concern over Big Tech's unfettered power, and touts the Commission's proposals for a Digital Markets Act and a Digital Services Act.

On the subject of the Digital Markets Act I strongly recommend this panel discussion hosted by the UK-based Centre for Competition Policy. One of the panelists, Professor Damien Geradin of Brussels-based Geradin Partners, regularly writes about these policy topics on his Platform Law Blog, which I strongly recommend (just like I've repeatedly recommended Professor Thomas Cotter's Comparative Patent Remedies blog on patent remedies and, particularly, FRAND licensing issues.

President von der Leyen's op-ed shows an interesting parallel between the platform regulation and competition discussions in the United States and in Europe: free speech issues get conflated with antitrust enforcement and antitrust-like regulatory interventions such as those envisioned by the DMA--and while it's a rule of thumb in politics that the broader your range of issues is, the smaller your coalition will be, this context is a rare exception: here, the combination of those issues actually helps build a consensus. An oversimplified way to put it is that Twitter's Trump ban increases the regulatory risk for online platforms like Facebook, but also the likelihood of competition enforcement against other tech companies and business models:

  • In the U.S., there's an ideological divide: Democrats are concerned about antitrust underenforcement (I very much agree with what Senator Klobuchar said about that in Justice Barrett's confirmation hearing) while Republicans fear that competition enforcement often amounts to governmental overreach and runs counter to Ronald Reagan's "Get government out of the way" approach. But more and more Republican politicians are uncomfortable with the notion of mostly left-leaning Silicon Valley companies (ab)using their Section 230 freedoms in order to suppress free speech by conservatives. Theoretically, those are separate topics, but practically, they're part of a wider #techlash agenda. That agenda has better chances of being implemented without a Republican knee-jerk reaction to competition enforcement.

  • In the EU there's a divide between its member states. In France and other Mediterranean countries, the idea of government running or at least directing everything is more popular than in Germany, the Netherlands, and the Nordic countries. With the UK, the most clearly pro-free-market country in Europe has left the EU. And in Germany, the political spectrum as a whole has shifted very much to the left. Seriously, the actual policy differences between President Biden and his predecessor are even smaller than between Biden and Merkel (who is actually a center-left politician, though nominally center-right). The political climate in Europe is definitely amenable to initiatives such as the DMA and DSA (which I, by the way, welcome in principle, though the devil is in the details). But to the extent any politicians might have reservations, concerns over Big Tech undermining democracy and free speech are sure to bring everyone together.

I won't go into detail on particular political initiatives for now. The purpose of this post is just to highlight a certain parallel between developments in the U.S. and in the EU.

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