Introduction: antitrust law and the fourth industrial revolution
Antitrust law has always worked within an economic structure. After several industrial revolutions, we have reached a turning point where technology presents itself not only as a tool but as a social force that affects our political, social and economic environment. Consequently, for some years now, we have been witnessing a new phase of capitalism, which authors have called the fourth industrial revolution.
This revolution is linked to the technological innovations that have been produced in recent decades. Among these are those relating to information and communication technologies, the development of computers, tablets, smartphones and the like, and their programs and apps, and the emergence of the internet at the end of the 20th century. Moreover, one of the main factors that has influenced the connection between physical and digital applications is known as the internet of things (IoT).
The IoT can be described as the relationship between things (products, services, places, etc.) and people through a series of connected technologies and various platforms. This technology accomplished its full potential through sensors and numerous other means of connecting things in the physical world to virtual networks. Billions of devices around the globe, such as smartphones, tablets and computers, are connected to the internet. In addition, future projects such as ‘smart cities’ rely on a digitalised structure that is not far from reach, as big-tech companies aim to pursue an algorithmic way of living.
Today, the world is all about connectivity and data flows, as producers and consumers exchange information and make decisions freely and independently. This flow of data operates within the society of information in which digital platforms build up digital markets under the scope of e-commerce, substituting and complementing traditional markets based on physical interpersonal relationships. Therefore, it is undeniable that the internet has transformed our economy and has affected different markets, both existing and forthcoming.
By January 2019, 56 per cent of the global population were internet users. Companies such as Google and Facebook already operate in a data economy or digital economy, marked by the development of a double process that implies, on the one hand, the exponential generation of data and, on the other, its continuing dissemination favoured by all kinds of sensors and artificial intelligences.
In addition, in the digital economy there are market structures characterised by the presence of online platforms from two or more sides. For example, search engines are platforms that connect users, content providers and advertisers. Unlike one-sided markets, they do not offer a direct interaction between the final consumer and the supplier of the good but are characterised by their intermediaries who make connections between users through indirect networks. WhatsApp would be an example of a direct network economy or platform.
However, just as the Internet Age has been established, blockchain technology brings great changes and proposals. Therefore, it would not be wrong to speak of a Blockchain Era. As such, it is based on consensus mechanisms built on decentralised databases capable of eliminating the need for third parties to act as intermediaries. In fact, Sir Tim Berners-Lee – founder of the world wide web – has argued that ‘the future is moving towards decentralized platforms as opposed to the current centralized versions’.
Therefore, it is within this new economic structure that antitrust law finds itself at the centre of change as we – actors in the process – reflect on whether antitrust policies in Argentina are firm enough to confront this new digital era.
Defining key concepts: digital economy and platform economy
A new economic model has arisen from the fourth industrial revolution under the notion of a digital economy. Nonetheless, a clarification of what is meant by ‘digital economy’ has become increasingly difficult and intertwined with traditional economy. Therefore, before any analysis can be made, a definition, conceptualisation and measurement of this phenomenon is necessary.
Some do not rely on a specific definition and identify the digital economy as a ‘complex structure’ or ‘less as a concept and more as a way of doing things’. Moreover, definitions may fail to conceive the essence of the phenomenon it seeks to define and loses itself in the times and trends from which they emerge. For example, early definitions focus especially on the internet, reflecting its emergence during the 1990s, whereas later definitions add new inventions such as mobile phones, sensor networks, cloud computing or big data.
Despite this, all definitions share three key elements. First, they all recognise technology as the foundation for the digital economy. Second, no definition tends to restrict itself only to the digital sector but amplifies its borders. As a result, ‘digital economy’ covers all digitally enabled economic activity. This last aspect tends to be a problem since the more activities have developed with technology, the more the digital economy is just economy. Therefore, it is complex to distinguish between what may fall under the scope of digital economy and what is just traditional economy branched with technology. Authors argue that, instead of referring to a digital economy, one should speak of a digitalised economy. The distinction arises from the differentiation between ‘digitisation’ (conversion of data from analogue to digital form) and ‘digitalisation’ (application of digitisation to organisational and social processes, including economic activity). If this last approach is applied, a narrower scope of digital economy would serve those activities and technologies that are emergent and did not pre-exist the digital technology such as the platform economy, the gig economy and the sharing economy. This brings up our third key element, which that is all definitions of ‘digital economy’ extend not only to the applications but the productions of those digital technologies. Therefore, platform-based companies would be included, such as Facebook or Google, which are solely digital, as well as platforms that trade tangible goods, such as Amazon, eBay, or Alibaba, plus Airbnb and Uber in a closer blurred edge.
Now that platform-based companies have been mentioned, we should analyse a definition of platform economy. Platform economy falls under the scope of the digital economy as an economic environment that brings together two or more groups who value each other in some way. These platforms have already been questioned under antitrust principles. On the one hand, each platform has an access guardian (gatekeeper) on a key distribution channel (key channel). Facebook is a social network; Google is an ad-supported search engine; Amazon is a commercial distribution network; and Apple is an operating system with an app store. The access guardian of each platform uses its position to maintain its market power. From that position, it controls other businesses, which allows it to identify potential rivals to copy or replicate or buy; for example, Facebook buying Instagram and WhatsApp. Moreover, most of these companies have exerted an abusive dominant position in the market, excluding competitors and exploiting consumers who have developed high levels of dependency as technology has become part of our daily living.
As a result, the one question underlying these issues is whether the Argentine Antitrust Law No. 27,442 (the Antitrust Law) is sufficient to address competition problems within the digital market.
Merger control cases with a digital aspect
The Prisma case
On 25 November 2019, a Resolution was signed that approved a transaction carried out in January 2019, which consisted of a group of 14 banks from Argentina and Visa International selling 51 per cent of shares of the company Prisma Medios de Pago SA and transferring control of the company to the Advent investment fund. This resulted in a process that began in May 2016 when the National Antitrust Commission opened an investigation into the credit, debit and electronic payment card market. The case developed in a context of technological change and significant digital disruptions in the sector. One of the greatest merits of the investigation was the study of the sector from an antitrust perspective in Argentina, which in the long run facilitates the entry and development of new players and business models based on platforms and provides certain predictability regarding the Antitrust Commission’s opinion on these matters.
Professor Xavier Vives identifies three types of actors involved in the sector: incumbents and two types of new entrants – fintech companies and big-tech companies. Among the incumbents are banks and credit card brands such as Visa and MasterCard. Big-techs are large technology companies that are expanding their product horizons to provide electronic and financial payment services and are typically organised around platform models such as Amazon, Google or Apple. In Argentina, the main exponent of this group is Mercado Libre, an electronic commerce platform that ventured into electronic payment services with its Mercado Pago app. Finally, fintech (financial technology) is meant by companies that use innovative technology in financial services. In Argentina, a numerous group of these are present.
The origin of the Antitrust Commission’s market investigation was the existence of a closed market structure made up of a group of incumbents that could be preventing the development of big-tech and fintech players in these markets, thus causing damage to the general economic interest. In this case, Prisma, as the main incumbent, exerted a dominant position and was the only company commercialising the Visa brand in Argentina. Also, the company was present in all the links of the chain of electronic payment services and its shareholders were 14 Argentine banks, leaving a restricted space for big-tech and fintech.
The Antitrust Commission evaluated two theories: (1) a potential unilateral conduct based on an abusive exclusive dominant position by Prisma; and (2) a potential coordinated conduct facilitated by the society of banks in Prisma that would affect consumer financing conditions.
Potential unilateral conduct based on abusive dominant position
First, the Antitrust Commission understood that there were entry barriers that made it difficult for new players to enter the market and for the expansion of existing players that competed with Prisma in the provision of various services. This was evident, given that only Prisma had an operating licence to market VISA. Moreover, the integration of Prisma made the company the only option for some players within the value chain. For example, entrants who wanted to offer payment options and include the VISA brand in their portfolio had to turn to Prisma. Consequently, the company had built an infrastructure under which any actor who wanted to commercialise with VISA (whether online or physically) had to work with Prisma.
Potential coordinated conduct facilitated by society of banks
The shareholding composition of Prisma, in which 14 of the main banks in the country converged, constituted a potential vehicle for the coordination of commercial strategies, since the financing system through the payment of instalments with VISA credit cards implemented by Prisma established financing conditions that had to compete with those offered by its shareholder banks.
Relevant market definition: an analysis of platform markets
The credit card and electronic payment markets belong to the category of platforms that connect different types of customers and are known as bilateral or multilateral platforms. One definition applicable to this type of market is provided in a study by the Organisation for Economic Co-operation and Development (OECD): ‘a market in which a firm acts as a platform and sells different products to different groups of clients, recognising that the demand of a group depends on the demand of another group’.
One of the distinctive characteristics of these markets is the relationship between the demand of the different groups of users of the platform (the different sides of the platform) that allow indirect network effects. These effects constitute externalities, since a greater number of users on one side of the platform make it more attractive to users on the other side. When these effects are significant, the prices that the platform charges users on one side affects demand on the other side, which in turn leads to reactions in demand from the first group.
Further, the Antitrust Commission identified four relevant markets: (1) electronic payment issuance; (2) adhesion or acquisition; (3) electronic payment processing; and (4) provision of terminals or interfaces for electronic payments. Prisma operates in all these markets.
The case was finally solved through the offer of a structural commitment consisting of the divestment of Prisma and a commitment to conduct linked to the conditions for the provision of the payment processing service, whose validity conditions were subject to compliance.
The Prisma case stands as an important precedent within the digital economy since the subject held to discussion is not purely digital but a reflection of an ongoing process (as explained above) regarding the digitisation of the traditional economy. As a result, the Antitrust Commission first entered the world of economic platforms and prepared to face even greater challenges.
Investigations and decided cases
WhatsApp and Facebook
On 13 May 2021, the Secretariat of Trade in Argentina, based on the opinion of the Antitrust Commission, ordered the opening of an ex officio investigation against WhatsApp Inc and its controllers for a potential violation of competition, under the terms of Sections 1 and 3 of the Antitrust Law. As in other jurisdictions mentioned in its opinion (Turkey, India, Italy, Germany and Brazil), the Antitrust Commission considered that updating the terms of service and conditions of WhatsApp privacy (mandatory for its users) that would take place on 15 May 2021 could generate anticompetitive consequences by virtue of its interaction with its parent company, Facebook.
The Antitrust Commission understood in its opinion that, given the high penetration of users in Argentina, Facebook holds a dominant position in the digital platforms market through its social networks (Facebook and Instagram), as well as the WhatsApp messaging platform. Taking this dominant position into account, the Antitrust Commission identified a series of potential problems that would arise as a result of the new terms and conditions, among which would be a possible exploitative conduct (referring to the compilation of user information on the platforms and the absence of options for the users of these platforms to limit the processing of their information outside the platform on which it was required or obtained) and exclusions (corresponding to possible exclusions of competitors in online advertising as a result of the treatment, cross-linking and consolidation of the information obtained about the users of all its platforms).
In addition, the Antitrust Commission analysed the relevant market within the economic structure of digital technologies. Citing the OECD, the Antitrust Commission argued that the digital economy is an economy made up of markets based on digital technologies that facilitate the trade of goods and services through electronic commerce (e-commerce) that operates on a layer basis, with separate segments for the transport of data and applications.
Within the digital economy, there are market structures that are characterised by the presence of online platforms with two or more sides; that is, of platforms that coordinate the interdependent demand of two or more groups of users. These structures are generally financed through advertising and include, for example, search engines, social networks, commerce portals, audiovisual content services, among other platforms.
As a result, platforms with two or more sides include two or more user groups. For example, search engines are platforms that connect users, content providers and advertisers. Unlike one-sided markets, they do not offer a direct interaction between the final consumer and the supplier of the good but are characterised by intermediaries who make connections between users through indirect networks. WhatsApp would be an example of a direct network economy or platform.
The characteristics of a platform with two or more sides are that:
- there are two or more user groups that use the platform;
- there are indirect network externalities that occur when the usefulness of the platform for the user on one side of the market increases when the number of users, the quantities traded or the quality of the users on the other side of the market increases. For example, the greater the number of users or market share of a social network, the more value it will have for any advertiser; and
- there is an intermediary or platform necessary to internalise the externalities created by the market consumer group.
The market with two or more sides in which Facebook and its subsidiaries participate, particularly those that provide the social media service, is part of what is known as a non-transactional two-sided market (or advertising platform). Unlike commercial platforms, there is no direct transaction between the groups of users of the platform, because the business model consists of attracting users to the platform and generating incentives for advertisers to pay for advertising space on the platform.
The analysed case demonstrates that an investigation into possible anticompetitive practices in digital markets initiated in one jurisdiction may be replicated in others, producing a snowball effect. In this way, the global presence of digital markets not only serves as regulatory inspiration but also allows us to anticipate cases that could arise before the authorities in Latin America. Therefore, the WhatsApp/Facebook case has proved to be a modern precedent in which Argentine antitrust law has been tested under the competition problems that may arise in digital platforms.
Competition policy and advocacy initiatives
In relation to these cases and investigations, the multinational nature of the markets involved not only encourages the Antitrust Commission to evaluate the regulations adopted in other countries but also to examine their case law on the matter. This can be seen in Argentina through the WhatsApp/Facebook case, in which the opening of the investigation followed international precedents from countries such as Turkey, India, Brazil, Germany, Italy and the United States.
In this sense, in June 2021, the European Commission opened two new investigations. The first targets Google for an alleged restriction on competition by limiting third parties’ access to data needed to operate in the digital advertising market. The second involves an investigation of Facebook’s new ‘Facebook Marketplace’ to evaluate the organisation’s potential competitive advantage in the digital advertising market thanks to the information it gathers from its social media platforms. Although these investigations have not been picked up by the Antitrust Commission yet, it should come as no surprise if it decides to take a look at these markets in the near future.
The foregoing shows that an investigation into potential anticompetitive conduct in digital markets opened in a particular jurisdiction may be replicated in others (such as Argentina) in a snowball effect. Thus, the global presence of digital markets not only provides regulatory inspiration but also signals the future cases to be discussed by Latin American competition authorities.
In relation to the antitrust policy in Argentina, however, there are no specific regulations regarding digital platforms. Hence, new digital issues have to be faced on the basis of generic anticompetitive conduct and merger control regulations.
Moreover, on 30 November 2020, a Draft Bill for the amendment of certain sections of the Antitrust Law was included within a set of bills to be addressed by the Argentine National Congress in its extraordinary sessions. The Draft Bill includes several relevant changes to the structure of the National Competition Authority (which is intended to replace the Antitrust Commission some time in the future, as explained below) as regards both the merger control and anticompetitive conduct regimes. This Draft Bill was approved by the Senate on 4 February 2021, which has included certain amendments to the original draft. Since the Draft Bill was not discussed during extraordinary sessions, it is now expected to be discussed by the House of Representatives during its ordinary sessions of 2021. However, at the time of writing, it has not yet been discussed and there is no indication as to when it will be. It should be noted that this Draft Bill does not address digital markets specifically nor does it propose any specific procedures or regulations that would aid the Antitrust Commission or the parties in proceedings or investigations regarding these types of markets.
The Antitrust Commission has been striving for the digitalisation of dockets for some years. Before the covid-19 pandemic struck, filings before the Commission had to be performed both physically and digitally (i.e., in CD format) with the aim of eventually transitioning into a fully digital system.
This process had to be abruptly sped up once the government placed restrictions to circulation and attendance in the workplace. To maintain the Antitrust Commission’s functionality during the pandemic, a remote procedures platform (Trámites a Distancia (TAD)) was implemented. Through this website, the parties in a merger control proceeding can notify a transaction before the Antitrust Commission as well as provide answers to subsequent requests for information.
However, it should be noted that TAD is not a proprietary system of the Antitrust Commission. Instead, it is a platform used to manage a wide variety of government permits and procedures before different agencies and authorities. As such, TAD is not tailored to fit the needs either of the Commission or of the companies that appear before it. In addition, TAD users are often met with technical difficulties that may interfere with the proper filing of merger control notifications or responses to requests for information.
Furthermore, some issues regarding antitrust proceedings in Argentina have not been addressed in this digitalisation process. For example, anticompetitive conduct cases that began before the implementation of TAD (bearing in mind that anticompetitive conduct proceedings can last upwards of five years) have not yet been digitalised. As a consequence, since they are not accessible online, cases have to be accessed manually by attorneys in the Antitrust Commission’s offices.
As regards the possibility of creating a digital unit within the Antitrust Commission, the Antitrust Law created a new decentralised and autarchic antitrust authority within the Executive Branch: the National Competition Authority. However, until the appointment of the members of the new antitrust authority, the existing double-tier system comprising the Antitrust Commission and the Secretary of Domestic Trade will remain in force. The National Competition Authority will include three divisions: the Antitrust Tribunal, the Anticompetitive Conduct Secretariat and the Merger Control Secretariat. At the time of writing, the National Competition Authority had not been created. Moreover, the aforementioned Bill for the amendment of the Antitrust Law has addressed the issue of the creation of this authority but made no mention of the creation of a digital unit or any other branch of the sort. As such, and considering the substantial delay in the implementation of changes to the antitrust authority, we believe the creation of a digital unit is unlikely, at least in the foreseeable future.
Finally, as regards the Antitrust Commission’s budget, it should be noted that, although Section 33 of the Antitrust Law sets out filing fees that would contribute to make up the Commission’s budget, these filing fees have not been brought into effect yet. As such, at the time of writing, the parties in a merger control proceeding need to pay no fees to file for a transaction’s review. This is a hindrance to the Antitrust Commission’s budget, which currently depends fully on funds granted by the Ministry of Productive Development. This budget limitation could also make it difficult to create a digital unit, at least for the time being.
Given the relevance that companies in the digital markets currently have, it is critical that the Antitrust Commission faces the challenges posed by these dynamic and modern markets. From a purely practical perspective, it remains to be seen whether the Commission is ready to continue incorporating sophisticated concepts and analysis tools in accordance with this need.
Conclusion: is Argentina’s Antitrust Law up to the challenge?
At a time when innovation symbolises process, it is important that antitrust regulations refrain from disrupting the development of the digital markets. Nonetheless, certain limits must be constructed so that new players may participate in the game, allowing for a broad portfolio of choice for consumers and users. The law is about regulating reality and as such we are responsible for keeping up with the process. Our standards must remain firm during times of change. Still, the question remains whether substantial reforms are needed or if adaptation will be sufficient. A proper equilibrium should be chosen since maintaining principles is what assures formal validation when implementing our legislation in any case, but without any strong interventionism that may generate limitations to innovation, which is ultimately the engine of an Argentine economy that urgently needs to take off.