Antitrust

S H E A R M A N & S T E R L I N G L L P | 9 smaller businesses who rely on using these online platforms. The EC considers that these are the first rules of their kind, requiring online platforms (approximately 7,000 of them operating in the EU) to be more transparent and fair, for example regarding how they rank search results and why they do not list some services. Where companies list their own products on their platform, they will need to clearly disclose any advantages they grant to their own products. In addition, online platforms cannot suspend or terminate a business user without first providing a statement of reasons. Mariya Gabriel, the EU's Commissioner for the digital economy and society, has stated that the rules "strike the right balance between stimulating innovation while protecting our European values." Indeed, initial reactions from the industry appear to be positive, viewing the proposed law as relatively light-touch. The rules will now need to be formally approved by the Member States and the assembly before becoming law. UNITED STATES In the United States, although enforcement of digital markets has been the subject of significant attention and robust discussion, including among top officials at the U.S. antitrust agencies, actual enforcement action has been limited and the agencies have not publicly announced any active investigations in the past few years. The most recent indication was an investigation by the Federal Trade Commission (FTC) in 2015 into whether Google favors its own search and other T H E E U H A S P R O P O S E D A N U M B E R O F L E G I S L A T I V E M E A S U R E S A I M E D A T C O N T R O L L I N G T H E B E H A V I O R O F T H E T E C H G I A N T S A N D O N L I N E P L A T F O R M S CONTINUED > services on the Android operating system, though no more recent information has been revealed (including with regards to whether the investigation is ongoing). And while the recent fines imposed on Google by the EC have led to calls for the reopening of the FTC's investigation into Google's search advertising practices that it closed in 2013, the FTC has not publicly commented on any such renewed investigation. FEDERAL TRADE COMMISSION As between the two U.S. antitrust agencies, the FTC appears to be more active in this area. Beginning in September 2018, the FTC launched a series of public hearings on various topics, including competition issues in communication, information and media technology networks; market power, entry barriers and anti-competitive conduct in platform markets; and the intersection of privacy, ‛big data' and competition. The FTC is also seeking public comment on these issues, and together these initiatives evidence the FTC's critical assessment of its enforcement policies and priorities as they relate to regulation of digital markets. In February 2019, the FTC also announced the formation of a 17-member 'Technology Task Force,' whose focus is to monitor and investigate U.S. technology markets and to take enforcement actions when appropriate. The new task force will also coordinate with other agency staff in reviewing both proposed and consummated mergers in the industry.

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