The DOJ Antitrust Division began a review of leading platforms "to assess the competitive conditions in the online marketplace" and "to ensure Americans have access to free markets in which companies compete on the merits to provide services that users want."
Specifically, the Division will:
- assess competitive conditions;
- respond to "widespread concerns" from market participants regarding "search, social media, and some retail services online";
- request input from the public regarding competition on online platforms; and
- respond to any violations of the law that are identified.
Commentary
On the heels of the G7 "common understanding" about competition law enforcement of the digital economy, and the FTC's recent hearing on the same subject, not to mention the FTC's $5 billion fine this week of Facebook, the Justice Department's announcement that it will review the practices of market-leading online platforms has the feel of a johnny-come-lately. Significantly, Makan Delrahim, of the DOJ's Antitrust Division, came into office voicing skepticism that antitrust law needed to be revived in order to keep up with the changing digital economy. The Division's current leadership has also reaffirmed traditional U.S. antitrust enforcement principles that favor individual case-by-case development over what the Europeans refer to as sector investigations. Having been left in the rearview mirror of both Europe, its sister agency (the FTC) and, increasingly, state attorneys general (see here), the DOJ apparently will shortly embark on a sector investigation involving the high tech economy. Although the outcome of the investigation cannot be known in advance, it seems unrealistic to expect any far-reaching actions from an agency whose very DNA is built around identifying individual law violations rather than industry reorganization.
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