A coalition of publishing, tech and other digital organisations have warned against a potential change to the competition watchdog’s appeal process that could allow tech giants to “leverage their resources in the courts to obstruct and delay” regulation.
The Digital Markets, Competition and Consumers Bill is the UK’s version of legislation designed to regulate competition and dominance of the market by the biggest tech companies such as Google and Meta, which owns Facebook, Instagram and Whatsapp. It would also seek to force these platforms to negotiate payments for content with news publishers.
A coalition that includes the News Media Association, Professional Publishers Association, Public Interest News Foundation, Radiocentre and other tech businesses such as search engine Duck Duck Go, travel companies Expedia and Skyscanner, and the Open Web Advocacy has written to Prime Minister Rishi Sunak urging him to keep the Judicial Review standard for appeals within the bill.
They fear that a change to a “full merits” or “Judicial Review-plus” standard for appeal would mean “powerful firms with unlimited legal budgets could leverage their resources and unparalleled strength in the courts to obstruct and delay the entire regime: on average, merits appeals take twice as long as appeals on Judicial Review principles”.
The letter said this could leave the Competition and Markets Authority “unable to move quickly enough to address significant anti-competitive harm”.
The size of the tech companies’ legal budgets was also raised earlier in the week at the Lords Communications and Digital Committee on the bill.
Committee member Dido Harding, best known by many for leading the NHS Test and Trace programme during the Covid-19 pandemic, said: “If I can only afford one case, and you [the tech giants] can afford ten of them, timing is in your favour.”
At the same committee, Meta’s UK policy manager Matt Foster argued platforms have a responsibility to their users to fight for the integrity of their service, which merits a review standard of appeal would allow them to do.
Owen Meredith, chief executive of the News Media Association, told the committee the digital markets bill is urgently needed to recognise the value of news on platforms like Google and Facebook and tackle a “market failure”.
Meredith outlined the damage big tech has dealt to many news outlets, saying: “Digital markets don’t function properly, and essentially there has been a market failure… we need this new legislation to tackle it.”
He said “the monetisation is fundamentally flawed because of the monopolistic attitudes and controls that a small number of big tech firms exercise”, adding that “we need this legislation to reframe the way that digital markets work”.
Meredith said the root of the issue was the lack of recognition that news outlets were receiving for bring present on Google, saying the value created by having news as part of their overall product is fundamental to big tech’s ability to charge advertisers a premium.
He added: “What we are asking for is recognition of the value that news brings to these platforms.”
This was echoed by other speakers at the hearing, including Richard Stables, chief executive of e-commerce company Kelkoo Group, which is also part of the coalition that wrote to Sunak this week. Stables said his business was one of many “suffering from big tech stealing from industries”.
Overall, legislators have been “asleep at the wheel” over antitrust laws over the last 20 years, he alleged. He added that this has led to a situation where “five companies run the internet”. Government affairs managers from all five of those five companies, Microsoft, Google, Apple, Amazon and Meta, were present at the hearing.
Google’s Tom Morrisson-Bell stated that “we strongly believe that our products are excellent products”. When asked how Google would like the digital markets bill to be formulated, Morrison-Bell affirmed the need for “a regime that has a consumer at the heart, one that is delivered by having the right checks and balances”.
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