Private Power, Online Information Flows and EU Law: Mind The Gap

by Angela Daly

Overview

This monograph examines how European Union law and regulation address concentrations of private economic power, which impede free information flows on the Internet to the detriment of Internet users' autonomy. In particular, competition law, sector specific regulation (if it exists), data protection and human rights law are considered and assessed to the extent they can tackle such concentrations of power for the benefit of users. Using a series of illustrative case studies of Internet provision, search, mobile devices and app stores, and the cloud, the author demonstrates the gaps that currently exist in EU law and regulation. Daly argues that these gaps exist due, in part, to current overarching trends guiding the regulation of economic power, namely neoliberalism, by which only the situation of market failures can invite ex ante rules, buoyed by the lobbying of regulators and legislators by those in possession of such economic power to achieve outcomes which favour their businesses. Given this systemic, and extra-legal, nature of the reasons as to why the gaps exist, solutions from outside the system are proposed at the end of each case study. This book will appeal to EU competition lawyers and media lawyers. *** "This is a richly textured, critically argued work, shedding new light on case studies in information law which require that critical thinking. It is both an interesting series of case studies (notably cloud computing, app stores and search) that displays original and deeply researched scholarship and a framework for critiquing neoliberal competition policy from a prosumerist and citizen-oriented perspective." --Professor Chris Marsden, University of Sussex (Series: Hart Studies in Competition Law, Vol. 15) [Series: Hart Studies in Competition Law, Vol. 15]

Product Details

ISBN-13:	9781509900633
Publisher:	Hart Publishing UK
Publication date:	12/01/2016
Series:	Hart Studies in Competition Law
Pages:	178
Product dimensions:	6.20(w) x 9.30(h) x 0.70(d)

Table of Contents

Acknowledgements v

Abbreviations xi

Table of Cases xiii

Table of Legislation xv

1 Introduction 1

I This Book's Approach 2

II Intended Contribution 7

III Outline of the Book 11

2 The Internet, User Autonomy and EU Law 14

I The Internet, Power and Freedom 14

A The Internet and Freedom 15

B The Internet and Power 17

II User Autonomy 21

III User Autonomy, Non-Economic Values and EU Competition Law 23

A User Autonomy and Consumer Choice 23

B Non-Economic Values in EU Competition Law 25

C Data, Democracy and Competition 28

D Fundamental Rights and Competition 31

IV Private Power and Fundamental Rights 33

V Regulating for User Autonomy 35

VI Better Ways of Achieving User Autonomy? 39

VII Conclusion 40

3 Dominance and Internet Provision 42

I Technical and Market Developments in Internet Access Provision 43

II Net Neutrality Explained 46

III Problems Arising from Network Management Practices 47

A Competition Concerns 47

B Free Expression 48

C Privacy and Confidentiality 50

IV Existing European Law and Regulation 51

A Regulation 51

B Competition in Fixed Line Internet Markets 52

C Free Expression 54

D Privacy 55

V Net Neutrality Regulation 56

VI Technical Solutions 59

A Data Encryption 60

B P2P File-Sharing 60

C Community Mesh Networks 61

VII Conclusion 61

4 Dominance and Internet Search 63

I Problems in the Market for Search 63

A Expansionist Tendencies 64

B Access to Information 66

C Bias 67

D Privacy and Data Protection 68

II Search Engines and Market Developments 69

III EU Investigation into Google 71

A Complaints Against Google 72

B Is Google Behaving Anticompetitively in Europe? 73

i Relevant Market and Market Share 73

ii Competitive Constraints 75

iii Abuse of Dominance? 76

iv Discrimination 77

v Refusal to Deal 77

vi Tying 79

vii Sui Generis Abuse 81

C Google's Commitments 81

IV Outcome of Competition Investigations and User Concerns 83

V Other Legal Regimes, Ex Ante Regulation and Extra-Legal Solutions 85

A Data Protection 85

B Free Expression 85

C Ex Ante Regulation 86

D Extra-Legal Solutions 88

VI Conclusion 90

5 Dominance and Mobile Devices 92

I Mobile Device Value Chain 93

II Problems with Mobile Devices and App Stores 94

A Competition 94

B Free Expression and Control 94

C Privacy 95

III Mobile Devices, Apps and Market Developments 96

A Market Leaders 97

B Allegations of Anticompetitive Conduct 99

i Apple 99

ii Google 102

IV Is there Anticompetitive Conduct? 103

A Relevant Markets and Market Share 103

i Device/Operating System Markets 104

ii App Stores 105

iii Markets for Specific Apps 106

B Competitive Constraints 106

C Abuse of Dominant Position 108

i Tying 108

ii Lock-in 111

iii Blocking Apps 111

iv Summary 112

V Other Legal Regimes 112

A Free Expression 112

B Data Protection and Privacy 113

C Regulation 115

D Extra-Legal Options 117

VI Conclusion 118

6 Dominance and the Cloud 120

I Problems with the Cloud 121

A Privacy and Data Protection 121

B Free Expression and Control 122

C Competition and Dominance 123

II Cloud Computing and Market Developments 124

III Effectiveness of Competition Law in Addressing Cloud Concerns 125

A Market Definition 126

B Competitive Constraints 126

C Operation of Abuse of Dominance 127

IV Other Legal Regimes 129

A Data Protection and Privacy 129

B Free Expression 131

V Regulation 132

VI Extra-Legal Solutions 134

VII Conclusion 135

7 Conclusion 137

References 141

Index 157