Antitrust, Big Tech, and Democracy: A Research Agenda

AuthorViktoria H. S. E. Robertson
DOI10.1177/0003603X221082749
Published date01 June 2022
Date01 June 2022
Subject MatterArticles
https://doi.org/10.1177/0003603X221082749
The Antitrust Bulletin
2022, Vol. 67(2) 259 –279
© The Author(s) 2022
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DOI: 10.1177/0003603X221082749
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Article
Antitrust, Big Tech, and Democracy:
A Research Agenda
Viktoria H. S. E. Robertson*,**
Abstract
In the twenty-first century, voter choice and the broader political debate are within the reach of
those that can access and channel the vast streams of user data that are generated online. How
digital platforms utilize personal user data to influence the outcome of democratic processes
has become a central issue that liberal democracies must confront. The paper explores whether
competition law has a role to play when it comes to addressing this intersection of Big Tech, data,
and democracy. It first sets out the democratic roots of competition or antitrust law in the United
States and the European Union. From these, the paper deduces that competition law cannot remain
inactive when it comes to maintaining a democratic society in the face of the abilities of Big Tech
to influence democratic processes and outcomes. The paper then goes a step further and asks
what role competition law could play in this regard. Should democratic values simply be reflected
in the procedural set-up of antitrust law, or is there a role for democratic values in the substantive
provisions as well? And if so, does antitrust law’s focus on keeping market power in check suffice
to fulfill its role in a democratic society, or does this role require the law to specifically target
antidemocratic market behavior as anticompetitive harm? In navigating these questions, the paper
contributes to the ongoing debate on political antitrust and sets out an ambitious research agenda
on how to carry this discussion forward.
Keywords
antitrust, competition law, data, democracy, digital markets, economic thought, political antitrust
I. Introduction: The Issues at Stake
The rise of big data and big analytics has led to a marked shift in competition dynamics.1 While, in the
recent past, competition law2 research and practice were concerned with Big Tech’s influence on
*Vienna University of Economics and Business, Vienna, Austria
**University of Graz, Graz, Austria
Corresponding Author:
Viktoria H. S. E. Robertson, Vienna University of Economics and Business, 1020 Vienna, Austria.
Email: viktoria.robertson@wu.ac.at
1082749ABXXXX10.1177/0003603X221082749The Antitrust BulletinRobertson
research-article2022
1. See especially Ariel ezrAchi & MAurice e. Stucke, VirtuAl coMpetition: the proMiSe And perilS of the AlgorithM-
driVen econoMy (2016).
2. In this paper, any reference to competition law should be understood as a synonym to antitrust law.
260 The Antitrust Bulletin 67(2)
innovation, prices, and consumer choice, they must now tackle a new type of threat that is becoming
increasingly problematic in practice: in the twenty-first century, voter choice and the broader political
debate are within the reach of those that can access and channel the vast streams of user data that digital
platforms generate online. The way that these data are being used gives rise to a type of harm that does
not directly threaten to increase the monetary prices that consumers pay or the innovation on which
consumers may miss out. This threat lies in an attack on the very foundation on which liberal democra-
cies are built: an open, liberal, and democratic society.3
Western liberal democracy cannot be defined with precision.4 It is a form of government that sub-
scribes to values such as free elections, free democratic debate, free speech, independent media, eco-
nomic freedom, and the equal respect for human rights for all. Under the lens of competition law, a
threat to the democratic values that underpin a Western liberal democracy will be called democracy-
related harm. Based on its far-reaching consequences for the economy and for society at large, democ-
racy-related harm may represent a necessary extension of already existing theories of competitive harm
in data-driven digital markets, such as price-related harm or innovation-related harm. Today, there still
is quite a way to go before it can be properly assessed to what extent democracy-related harm can
become an operational theory of harm in digital markets. However, already now one can notice a grow-
ing awareness within antitrust scholarship that democracy and democratic values may provide the very
basis for effective competition in a free market, resulting in a push for antitrust to recall its democratic
roots.5 With the growing power of digital data capabilities, this realization has recently regained
significance.
In data-driven digital markets, different kinds of behavior that companies engage in raise the ques-
tion whether they should be regarded as democracy-related harm from a competition law point of
view6: political marketing can micro-target voters based on detailed user data. Filter bubbles or echo
chambers restrict the range of available information and limit communication on digital platforms to
like-minded persons, thereby shaping the public debate. Digital assistants such as Alexa and Siri select
news items based on algorithms that are in the hands of Big Tech companies, possibly leading to a
biased public debate.7 Data on geolocation may be misused to prevent the freedom of assembly.
Algorithm-based censorship fed by nontransparent criteria restricts the public debate. Personal user
data generated through facial recognition in smartphones may be misused to undermine civic rights.
App stores have discretion over which apps to allow onto their platform, possibly holding back those
3. On the concept of an open, liberal, and democratic society, see kArl popper, the open Society And itS eneMieS (2 Vols.,
1945).
4. Even political science and theory disagree on its exact content; see Wendy BroWn, undoing the deMoS: neoliBerAliSMS
SteAlth reVolution (2015), 18–20 (speaking of the “open and contestable signification of democracy” on 20).
5. For example, see Eleanor Fox, Modernization of Antitrust: A New Equilibrium, 66 cornell l. reV. 1140 (1980–81); Harry
First & Spencer W. Waller, Antitrust’s Democracy Deficit, 81 fordhAM l. reV. 2543 (2013); Niels Petersen, Antitrust
Law and the Promotion of Democracy and Economic Growth, 9 J. coM. l. econ. 593 (2013); Elias Deutscher & Stavros
Makris, Exploring the Ordoliberal Paradigm: The Competition-Democracy Nexus, 11 coMpetition l. reV. 181 (2016);
Agustín Reyna, Why Competition Law Must Protect Democracy—A European Perspective, DAF/COMP/GF/WD, (2017),
36; Spencer W. Waller, Antitrust and Democracy, 46 floridA StAte u. l. reV. 807 (2019); eleAnor fox, Democracy and
Markets: A Plea to Nurture the Link, in frédéric Jenny liBer AMicoruM, Volume I 351 (nicolAS chArBit & SoniA AhMAd,
eds., 2019).
6. For accounts of these types of behavior that occurs in digital markets, see JAn A.g.M. VAn diJk & kenneth l. hAcker,
internet And deMocrAcy in the netWork Society (2018); MArtin Moore, deMocrAcy hAcked: hoW technology iS
deStABiliSing gloBAl politicS (2019); SiVA VAidhyAnAthAn, AntiSociAl MediA: hoW fAceBook diSconnectS uS And
underMineS deMocrAcy (2018); dAtA politicS: WorldS, SuBJectS, rightS (Didier Bigo et al., eds., 2019); kriS ShAffer,
dAtA VerSuS deMocrAcy: hoW Big dAtA AlgorithMS ShApe opinionS And Alter the courSe of hiStory (2019); ShoShAnA
zuBoff, the Age of SurVeillAnce cApitAliSM: the fight for A huMAn future At the neW frontier of poWer (2019).
7. On this particular issue, see Maurice E. Stucke & Ariel Ezrachi, How Digital Assistants Can Harm Our Economy, Privacy,
and Democracy, 32 Berkeley tech. l. J. 1239, 1271–78 (2017).

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