Information rules (Part 3: Regulating platforms – Reviews, models and challenges)

Information rules (Part 3: Regulating platforms – Reviews, models and challenges)

Phuah Eng Chye (5 December 2020)

Platforms occupy a central role in the transition to an information society. They are the vehicles propagating the use of information. They act as the information base for innovation, digitalisation, participation, monetisation, exchange and coordination. Platforms have introduced tremendous benefits and conveniences as well as made free or lowered the costs of many goods and services. Platforms have become embedded into society to the point where the devices on which they operate are regarded as the natural extension of individual beings.

The evolution of platforms has been largely unimpeded by regulation as governments stood aside so as not to inhibit innovation. But it is now a time of regulatory reckoning. Platforms are no longer a novelty but a threat; the battering ram of information disruption on the social, business and now political fronts. Convergence and polarisation expanded the points of friction. Transparency removed the room for subterfuge and compromise. The ubiquity of platforms has made them the scapegoat for economic, social and political ills. Platforms shoulder the blame for industry destruction, the loss of national competitiveness and the sins of technology that is causing the loss of privacy and freedoms and aggravating misinformation, divisiveness, inequality and instability.

Policy reviews

Governments in the EU[1], UK[2] and US[3] have undertaken major policy studies to review the regulation of platforms. Generally, the policy reviews have treaded on familiar ground and, in my view, there has been a lack of a conceptual breakthrough. The issues covered include:

  • Competition and anti-trust are a focal point for these reviews but the perspectives vary. The EU is concerned by the domination of global platforms and aim to curb mergers, acquisitions and anticompetitive practices as these hinder the emergence of homegrown champions. UK’s Digital Competition Expert Panel is more agnostic, highlighting “strong pro-competition policies that open up opportunities for innovation, and counter the forces that can lead to high concentration and a single winner” while pointing to the disadvantages of merger and antitrust enforcement. The US, home to the global platforms, focus on domestic anti-trust issues. The Stigler Committee on Digital Platforms and the Subcommittee on Antitrust Commercial and Administrative Law of the Committee on the Judiciary highlight several dominant platforms have become monopolies abusing their power to suppress competition  such as “charging exorbitant fees, imposing oppressive contract terms, and extracting valuable data…surveilled other businesses to identify potential rivals, and have ultimately bought out, copied, or cut off their competitive threats…abused their role as intermediaries to further entrench and expand their dominance…through self-preferencing, predatory pricing, or exclusionary conduct”.
  • Data and consumer protection. Among the international regulators, Europe appears more concerned about data concentration and online harms (and the impact on consumers, privacy, competition and innovation). The German Commission Competition Law 4.0 highlights “denial of access to data can qualify as an abuse of market power under current law” and data access should be mandated to promote contestability of markets. It was noted data sharing “can raise difficult antitrust issues which can impede the willingness to engage in cooperation”. There was also “a need for new procedural instruments to provide companies with the possibility to obtain legal certainty about the lawfulness of novel forms of cooperation under EU competition law”. Generally, there are concerns about the ability of existing rules to protect consumers against exploitative and discriminatory practices, misleading practices (e.g. on privacy violations), and on data interoperability.
  • Others. The coverage of policy issues is wide – including issues such as taxes[5], employment[6], inequality, media, surveillance[7] and politics. This demonstrates the extensive reach of platforms.

Policy reform efforts are intensifying. Platform CEOs are continuously hauled up to face congressional and parliamentary committees. In the US, Allana Akhtar and Hugh Langley notes following the Congressional report[8] on the monopolistic dominance of the biggest tech companies, the US Department of Justice filed an antitrust lawsuit accusing Google “of unlawfully maintaining monopolies in search and search advertising. It alleges that Google has used unfair practices to stymie competition, such as paying Apple billions of dollars a year to be the dominant search engine on its devices”. Other potential targets include “Facebook, the risk is having apps such as WhatsApp and Instagram broken off. Meanwhile Apple could be forced to loosen its control over its App Store, while Amazon could be at risk of having its Marketplace for outside sellers broken off”.

In Europe, the scope of regulatory reform[9] is widening. Based on a leaked[10] note[11], Alexander Fanta and Tomas Rudl speculates the EU is mulling the creation of a Digital Services Act to overhaul rules governing the net – covering a range of digital services such as online platforms, social networks, cloud services, ride hailing and others and, content responsibilities and liabilities. They note those these reforms require reaffirmation by transnational policies (such as on tax and data sharing).

In China, Yujie Xue notes following a “surge of complaints about fake or damaged goods, missing deliveries or lack of after-sales service”, the China Advertising Association drafted a code of conduct recommending “content censorship and real-name user registration for live-streamed shopping promotions” while the Professional Committee of Media Shopping of China General Chamber of Commerce drafted guidelines to address “product quality and practitioner qualifications”.

Recently, the State Administration of Market Regulation (SAMR) published draft regulation requiring “social networks, live-streaming and other platforms that provide vendors with business space and support services related to completing transactions such as product browsing, order generation and online payment…should perform the responsibilities of e-commerce platform operators in accordance to the law”. Yujie Xue explains these responsibilities include “monitoring the qualifications of vendors and the quality of products on the platform, protecting of consumer rights and intellectual property rights, and providing data and information upon request by authorities”. With standardised regulations for the live-streaming e-commerce industry, the expectation is that “top live-streaming anchors with more professional teams will be able to adapt to the stricter regulatory environment, while some smaller anchors without much substance and inconsistent product quality may gradually be eliminated”.

Regulatory models and challenges

The breadth of challenges indicates consideration of rule changes should be preceded by the mapping of regulatory jurisdictions. This involves defining which and what platforms should be accountable for and to whom; i.e. the agency where oversight powers and rule-making authority should be located.

It is difficult to map regulatory jurisdictions because platforms operate as a phenomenon of network connectivity. The diffused structure makes the fixing of regulatory focal points a problematic exercise. First, the platform is part of a tech stack stretching across the web, apps, search engines, platforms, cloud services, content delivery services, domain registrars, internet service providers and the telco infrastructure itself. Second, platforms already intrude, largely unregulated, onto many jurisdictions such as for competition, consumer, data, human rights, intellectual property, labour, media, security, tort, tax and telecommunications as well as across industry and geography. Third, innovations in IOT and AI will further expand the reach of platforms. Overall, severe (legal) definitional problems arise because platform models are diverse rather than uniform, are ubiquitous rather than segmented and are transitory as they are constantly reconfiguring.

In contrast, the range of regulatory models that can be applied to platforms are limited. Generally, the regulatory models differ in terms of the degree of reliance of self or co-regulation and direct government regulation. To a large extent, platforms self-regulate through the rules and code[12] they set for participants. Diane Coyle notes platforms have a “fundamental need to establish trust” and already “implement a wide range of rules concerning access and participation, technical standards, contracts…to manage uncertainty and share risk; to overcome or mitigate information asymmetries; and to co-ordinate their ecosystem in a complex environment…platforms in fact act as regulators or rule-making governance institutions in the context of many market failures and co-ordination problems – and that they indeed substitute for the need for government regulation”. In this regard, “self-policing is more effective in achieving the desired outcomes”; particularly in ensuring “constant quality feedback through the rating system”. She points out “formal regulation would then only be required to address other externalities” such as the adverse impact on a neighbourhood or discriminatory behaviour.

Firm-level self-regulation can be reinforced by establishing professional and industry codes of conduct to standardise norms and discipline among “member” platforms. For example, the German Commission Competition Law 4.0 proposes “there should be an EU Platform Regulation establishing clear rules of conduct for dominant online platforms…include a ban on self-preferential treatment of the platform operator’s own services over those of third parties, and an obligation to deliver real-time data portability with an interoperable data format”. Cristina Caffarra argues against this, pointing out “the digital businesses we worry about are so inherently different…a code of conduct needs to be specific and cannot be of general application…risk that the process for arriving at this code will become a protracted consensus-seeking iteration between sides, ultimately seeking buy-in from the firm to which it is to apply…How is this going to avoid regulatory capture, delay tactics, and procrastination?”

Generally, platform rules and industry code of conduct cannot be regarded as an equivalent substitute for formal regulation. In this context, platforms can be compared to pre-regulated exchanges which as member-owned mutuals governed conduct through membership and trading rules. However, informal regulation implies a lack of checks and balances on the exchange and member brokers, an absence of obligations to meet public interest goals and weak enforcement mechanisms.

For stock exchanges, it was the failings of self-regulation (e.g. the 1929 crash) that led to the introduction of formal regulation subjecting exchanges to oversight by a statutory regulator. For practical purposes, regulators have delegated or devolved via statute regulatory powers to exchanges in instances where they are better positioned to monitor and enforce certain rules. Since 2000, most exchanges have demutualised into for-profit organisations and this has given rise to conflict-of-interest issues with their regulatory duties. In regulating exchanges, regulators generally favour strong oversight regimes as weak forms of oversight have tended to give rise to conflicts of interest, market abuses and investor protection problems.

In assessing direct government oversight of platforms, it should be noted that platforms are already subject to oversight from multiple agencies. This creates a messy situation where platforms are subject to a patchwork of regulations – resulting in gaps and overlaps. Hence, most policy reviews consider proposals to tweak regulatory arrangements or to establish new agencies to ensure focused oversight.

UK’s Digital Competition Expert Panel recommended “the establishment of a digital markets unit” to use tools and frameworks to facilitate easier entry, support greater competition and consumer choice in digital markets; backed by legislation to give more predictability about the rules and standards”. “This unit would have three functions. First, it would develop a code of competitive conduct, with the participation of stakeholders” which would apply to companies deemed to have strategic market status. Second, “the digital markets unit would be charged with enabling greater personal data mobility and systems with open standards where these tools will increase competition and consumer choice”. “Third, the digital markets unit would be able to advance data openness where access to non-personal or anonymised data will tackle the key barrier to entry in a digital market, while protecting privacy”.

Cristina Caffarra notes “the UK is in effect forgoing antitrust enforcement in favour…taking the plunge in favour of regulation, and setting up a whole new regulatory infrastructure for digital giants, in preference to competition enforcement through ordinary competition rules…limitations of competition rules…there are fundamental issues that are hard to grapple with through competition enforcement – from consumer data rights, including privacy issues and compensation for consumers’ data performance, to concerns about incentive problems supporting disinformation…limitations of competition enforcement: the need to fit into precedent boxes, the time it all takes, the failure of remedies…Other main players are so far sticking to competition law…Germany has a draft reform competition law bill…give special status to companies with digital market power, and empower the Federal Cartel Office (FCO) to act quickly with injunction-like powers against these companies over multiple practices listed in an extensive catalogue of infringements; France’s Autorité de la concurrence (AdlC) is working closely with its privacy and communication agencies but still working off its antitrust powers, with enhanced use of injunctions and interim measures”.

Given the difficulties in defining a “platform”, some governments want to avoid the headache of creating a new agency to oversee a large pool of regulatees as well as avoid the risks of overburdening the small domestic players (that they want to nurture as homegrown champions). Hence, a popular idea is to focus on regulating only the large platforms. One way to achieve this is to designate the large platforms as information intermediaries. The idea appears simple but is actually complex. First, what is the platform an intermediary for; i.e. does its duties relate to data[13], content[14], consumers or markets? Complications are likely to arise particularly in relation to scoping their fiduciary duties. Second, what is being designated as the intermediary? Is it the platform or a unit within the firm (with firewalls)? Generally, limiting regulatory purview to dominant platforms (which are mainly from the US and China) has been criticised by US economists as discriminatory and protectionist.

A related idea is to authorise gatekeepers to certify platform practices or to act as independent watchdogs (similar to rating agencies). This might appear to reduce the pressures for regulatory intervention but the question arises as to who would oversight these gatekeepers and where their funding would come from.

Each regulatory model has its own deficiencies. Jean Tirole[15] notes the “drawbacks of classical approaches are well-known: self-regulation tends to be self-serving; competition policy is often too slow; public utility regulation…is mostly infeasible (and it is sometimes captured)”. K. Sabeel Rahman cautions that “even if we built a powerful, independent, and accountable public (or private) oversight regime, it would face the difficulties endured by any regulator of a complex system: Industry is likely to be several steps ahead of government, especially if it is incentivized to seek returns by bypassing regulatory constraints. Furthermore, the efficacy of regulation will turn entirely on the skill, commitment, creativity, and independence of regulators themselves”.

Creating a new regulatory agency to oversight platforms could worsen rather than address the fragmentation caused by overlapping jurisdictions. Already many regulatory agencies are involved and a new agency would only add to the confusion as to who should do what. Under these circumstances, the risk is that there would be more regulators than platforms. It is also not evident that regulation can be specified on an individual platform basis because of the permutations and complexity.

Rather than establish a new oversight regulator, it may be more practical to set up an agency to coordinate intra-agency efforts in policy research and rule-making. K. Sabeel Rahman notes “scholars have suggested the formation of regulatory bodies to assess algorithms, the use of big data, search engines, and the like, subjecting them to risk assessments, audits, and some form of public participation. Government oversight could attempt to ensure that firms respect values like non-discrimination, neutrality, common carriage, due process, and privacy. These regulatory institutions would monitor compliance and continue to revise standards over time”. Towards this end, small advisory groups may be established to facilitate coordination – on matters requiring research expertise. on harmonising regulatory standards and to conduct reviews on agencies’ regulation of platforms.

In formulating the new regulatory frameworks, there is a need to be wary of several pitfalls. The first risk is the misapplication of regulation. There are, too often, recommendations to use competition and tax policies to address a wide range of general grievances including privacy, content, innovation, inequality and democracy. If the remedies and disease are unrelated, the unintended consequences could be substantial. In addition, regulation proposals should also be examined for hidden intent such as the protection of legacy organisations and practices.

The second risk arise from regulatory over-reach. The wide scope of concerns on platform behaviour increase the risks of regulatory overload. In certain circumstances, the consequence is to weaponize law as a competition tool and shift the burden of clarifying the law to prosecutors and courts, creating an unhealthy environment.

The third risk derive from using a static approach to rule-making. Regulatory reform should be viewed as a continuous and dynamic process. Jean Tirole[16] suggests to “make heavier use of more reactive processes…participative antitrust in which the industry or other parties propose possible regulations and the antitrust authorities issue some opinion, creating some legal certainty without casting the rules in stone. The possibility of error must be accepted, and so the regulatory innovations must evolve as the authorities learn by doing and slowly incorporate them into guidelines. Such adaptive policies have enabled the comeback of patent pools (through business review letters), and include regulatory sandboxes, which are testing grounds for new business models that are not protected by current regulation, or supervised by regulatory institutions”.

Conclusion: The future platform landscape

Platforms are reshaping the global economic landscape. By controlling the flow of information, platforms are also able to control the flow of resources. This provides leeway to the dominant platforms to re-organise the global economy and they have done so by placing themselves at the center of that universe. In this global ecosystem, the dominant platforms are increasing their claims on resources in domestic economies and becoming important vectors of control and systemic risk.

The platforms are too powerful. Governments are re-asserting their authority to manage the economic risks and information harms posed by global platform dominance. Already, the global platforms are being threatened by new rules and fines by regulators around the world. In the future, it is envisaged that the platform space will be heavily regulated. Below are some trends to consider.

  • In tandem with new platform regulations, governments will increasingly assert sovereign rights on technology (code), data and revenues. Ultimately, the platform ecosystem will largely be shaped by international agreements on various issues such as data governance, taxation[17], content and currency.
  • In tandem with technological decoupling, new policies are likely to aim to promote homegrown public[18] and private platforms to wean the domestic economy off global platforms. Cecilia Rikap notes in 2019, Argentina launched a state-owned online marketplace called Correo Compras. The state-owned platform is positioned as an alternative to Latin America’s largest e-commerce platform MercadoLibre (FreeMarket). Correo Compras is intended to assist small and medium enterprises by requiring sellers to only pay a platform maintenance fee and to create quality jobs with a living wage for its employees. “Correo Compras offers the Argentinean state an unprecedented opportunity: the chance to access continuous market data flows in real-time…the state could significantly enhance its political action within and beyond e-commerce. It could anticipate productive and market opportunities and evaluate the impact of related policies in real-time. Data could be used for democratic planning, minimizing waste and respecting the ecological capacities of the planet. We could envision a sustainable scenario where data is used to identify and fulfil the needs of the population instead of further concentrating wealth and income”. Cooperative marketplaces have been touted as another alternative.
  • In response to the government’s regulatory drive, the private sector has adapted their strategies. Matt Stoller notes Apple is responding to the antitrust suit against Google by “stepping up efforts to develop its own search technology” and “lowered its app store fee from 30% to 15% for smaller app makers”. Google has stopped privileging accelerated mobile pages (AMP) which has been criticised as forcing publishers to divert traffic to Google and have increased the grants they are providing to publishers.

Overall, the appropriate paradigm is to view platforms as microcosms of an information society. The risk, from the haste to regulate platforms, is to over-focus on the harms and to overlook (or negate through bad regulation) the opportunities to use platforms to work for society. At the moment, the public goods element in platforms is very low; some of which represent tokens of a corporate strategy. In this regard, we should note that platforms have led the way in showing us how information can be used effectively. Governments, in collaboration with the private sector, should to launch a major drive to use platforms and data more effectively address social and economic needs.


Allana Akhtar, Hugh Langley (20 October 2020) “The Justice Dept just slapped Google with a landmark antitrust lawsuit. That could be bad news for Amazon, Facebook, and Apple”. Business Insider.

Alexander Fanta, Tomas Rudl (16 July 2019) “Leaked document: EU Commission mulls new law to regulate online platforms”.

Allison Schrager (27 June 2018) “A Nobel-winning economist’s guide to taming tech monopolies”. Quartz.

Bani Sapra (17 January 2020) “A group of small tech firms told Congress that Google, Apple and Amazon used bullying tactics to try to crush them”. Business Insider US.

Cecilia Rikap (25 November 2020) “What would a state-owned Amazon look like? Ask Argentina”. Originally published at OpenDemocracy.

Claudia Biancotti (1 March 2019) “Should internet companies be taxed for profiting from private data?” PIIE.

Cristina Caffarra (6 January 2020) “The UK’s other big experiment: Regulating online platforms?” Voxeu.

Diane Coyle (2016) “Making the most of platforms: A policy research agenda”. sponsored by The Jean-Jacques Laffont Digital Chair on the Digital Economy.

Digital Competition Expert Panel (March 2019) “Unlocking digital competition”. Chaired by Jason Furman.

Dylan Loh (27 November 2020) “From Thailand to Indonesia, taxes tighten for digital businesses”. Nikkei Asia.

European Commission (June 2019) “Note on Digital Services Act”. Directorate-General Connect. Digital Single Market Steering Group.

European Commission (July 2020) “Progress report – Work stream on differentiated treatment”. Independent expert group of the Observatory on the Online Platform Economy. file:///C:/Users/user/Downloads/ProgressReport-WorkstreamonDifferentiatedtreatmentpdf.pdf

European Commission (July 2020) “Progress report – Work stream on data”. Independent expert group of the Observatory on the Online Platform Economy. file:///C:/Users/user/Downloads/ProgressReport-WorkstreamonDatapdf%20(1).pdf

European Commission (July 2020) “Progress report – Work stream on measurement and economic indicators”. Independent expert group of the Observatory on the Online Platform Economy. file:///C:/Users/user/Downloads/ProgressReport-WorkstreamonMeasurementandEconomicIndicatorspdf.pdf

Federal Ministry for Economic Affairs and Energy (2019) “A new competition framework for the digital economy”. Report by the Commission Competition Law 4.0.

Jack M. Balkin (2016) “Information fiduciaries and the First Amendment”. UC Davies Law Review.—————————

Jacques Crémer, Yves-Alexandre de Montjoye, Heike Schweitzer (2019) “Competition policy for the digital era”. Directorate-General for Competition, European Commission.

K. Sabeel Rahman (April 2018) “The new octopus”. Logic.

Matt Stoller (23 July 2020) “Counterfeit capitalism, food delivery apps, and the attack on franchising”.

Matt Stoller (26 November 2020) “Could Google soon face…competition?”.

Phuah Eng Chye (2 March 2019) “Future of work: Transition to the information society”.

Phuah Eng Chye (16 March 2019) “Future of work: Strategy roadmap for labour”.

Phuah Eng Chye (21 December 2019) “The debate on regulating surveillance”.

Phuah Eng Chye (4 July 2020) “Government of the data (Part 3: The future of government platforms)”.

Phuah Eng Chye (7 November 2020) “Information rules (Part 1: Law, code and changing rules of the game)”.

Phuah Eng Chye (21 November 2020) “Information rules (Part 2: Capitalism, democracy and the path forward)”.

Stigler Committee on Digital Platforms (September 2019) “Final report. Committee for the study of digital platforms”. The Stigler Center.—committee-report—stigler-center.pdf?la=en&hash=2D23583FF8BCC560B7FEF7A81E1F95C1DDC5225E

Subcommittee on Antitrust Commercial and Administrative Law of the Committee on the Judiciary (2020) “Investigation of competition in digital markets: Majority staff report and recommendations”.

Thorsten Kaeseberg (12 December 2019) “Promoting competition in platform ecosystems”. Voxeu.

Yujie Xue (22 October 2020) “Chinese social media apps held to same standards as e-commerce platforms under new draft regulation”. SCMP.

[1] See Jacques Crémer, Yves-Alexandre de Montjoye and Heike Schweitzer.

[2]  See UK’s Digital Competition Expert Panel.

[3] See Stigler Committee on Digital Platforms; Subcommittee on Antitrust Commercial and Administrative Law of the Committee on the Judiciary

[4] Bani Sapra and Matt Stoller provide examples of bullying by platforms.

[5] See Claudia Biancotti.

[6] See “Future of work: Transition to the information society”; “Future of work: Strategy roadmap for labour”.

[7] See “The debate on regulating surveillance”.

[8] See Subcommittee on Antitrust Commercial and Administrative Law of the Committee on the Judiciary.

[9] Recent EU progress reports are listed in references. See Thorsten Kaeseberg on the agendas for the future of digital policy in Europe.

[10] See Alexander Fanta and Tomas Rudl.

[11] See European Commission (June 2019) “Note on Digital Services Act”.

[12] See “Information rules (Part 1: Law, code and changing rules of the game)”.

[13] AS proposed by the German Commission Competition Law 4.0.

[14] See Jack M. Balkin.

[15] See Allison Schrager.

[16] See Allison Schrager.

[17] See Dylan Loh on how Asian countries are tightening tax regulations on platform businesses.  

[18] Public platforms are not new. In Indonesia, a state-owned enterprise manages the digital payment service LinkAja. Brazil has seen the emergence of several public platforms since the pandemic, like the delivery platform FiqueNoLar. See Cecilia Rikap; See “Government of the data (Part 3: The future of government platforms)”.