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Curbing the Elusive Force of 'Modern Bigness'

Author

Giovanna Guiffrè & Valentina Malcotti

Oct 6, 2023

MOBI stretches the legal dimension, searching for normative responses to Big Tech’s composite power threats to free market competition and European democratic values.

We have seen ‘Big’ before. Big Finance, Big Oil, Big Media, and Big Pharma are all about market dominance in the hands of a few private companies. If it is not a new feature of capitalism, why has Big Tech, today’s XL player, made it onto the Horizon Futures Watch list? Digital giants seem to cast a longer (and darker) shadow. Slipping through market regulations, Big Tech has invaded the public sphere and is threatening not only free markets but also the democratic process.

 

Some Big Tech name-dropping will give the density of ‘Modern Bigness’ away: Amazon, Apple, Alphabet (Google), Microsoft and Meta (Facebook). These top 5 tech giants are digital sprawlers: their empires ‘rule’ many aspects of our daily lives.

 

This supremacy does not stop at market power and political lobbying. Big Tech’s delivery and control of the digital arena has generated a subtle but mighty force: digital power. The effects of this elusive power escape market relationships and are thus harder to trace, assess, and hold accountable.

 

At Utrecht University’s School of Law, the EU-funded MOBI project (ERC grant) is exploring ‘Modern Bigness’ from a normative point of view. Led by Anna Gerbrandy, MOBI project coordinator and Professor of Competition Law, PhD and postdoc students are researching the composite power that defines ‘Modern Bigness’ and its implications for antitrust regulations.

 

Gerbrandy puts a finger on the struggle to regulate Big Tech by highlighting how “competition law currently deals with fair market competition, market shares, and consumer rights. However, the non-market effects impacting the public domain, where digital power turns into public power and perhaps threatens democratic relationships, are formally beyond the discipline’s reach”.

 

A wider perspective is required to overcome the legislative impasse caused by gaps in the legal system and respond with normative instruments. “It’s not good enough to focus on market power” – Gerbrandy explains – “Big Tech can influence the right to reliable information (jeopardised by biased newsfeeds), impact free speech (polluted by social media-induced polarisation of public discourse), fair political representation (threatened by electoral algorithms) and privacy (endangered by exposure of sensitive data)”.

 

With aggressive business models, gobbling up start-ups and SMEs, platforming services, and aggregating data, Big Tech gurus are now unrivalled ‘gatekeepers’. “Google is our access point to the Internet, Facebook has become a news editor and Amazon has turned into the ‘everything store’”, observes Gerbrandy. Big Tech has penetrated the core of public institutions and governing bodies making them reliant on private digital infrastructure for their operations and blurring the boundaries between consumers and citizens.

 

As digitalisation and platform-based services are branching out into key sectors such as healthcare (telemedicine and AI diagnostics), agri-food (environmental monitoring and supply chain management), education (virtual learning), and transportation (automation), Big Tech will likely be involved in the delivery of most public services.

 

MOBI’s research highlights how the legal modus operandi must stretch beyond its comfort zone to ‘tame’ Big Tech and keep up to speed with the social challenges posed by rapid technological progress. The values of Source: Freepic the open society are at risk if the concept of ‘power’ is not extended beyond monitoring mergers and acquisitions. According to Van Dijck (1), “Institutional innovation should become just as sexy as technological innovation”. European competition law is already adapting to counterbalance ‘Modern Bigness’ by keeping companies accountable for their market effects (i.e., through lawsuits and fines for unfair competition, use of sensitive data, misleading news, etc.). A quicker pace of change is crucial to anticipate power scenarios and include holistic power checks in the regulation of Big Tech sooner rather than later, at greater costs and efforts.

 

Future-thinking helps us identify worst-case scenarios if we fail to strike the power balance. “Taking it to an extreme, we could face a technocracy” – warns Gerbrandy – “in which public institutions (government agencies, courts, schools, healthcare facilities, etc.) become so dependent on privately owned digital infrastructures to deliver their services that decision-making is outsourced to Big Tech-controlled algorithms.

 

Gerbrandy points to the billionaires’ “space race” to help frame issues of resource ownership and control of services. Space cowboys such as Musk (SpaceX) and Bezos (Blue Origin) are planting satellites and providing rockets to explore the galaxy. Although space colonisation might be a wise Plan B if life on Earth was at risk, Gerbrandy wonders: “Is it desirable to have private companies control access to space and its future colonisation, or should we support government space agencies?”.

 

There is uncertainty as to what the dangers of overregulating or underregulating Big Tech are, but Gerbrandy has no doubt about protecting the public sphere, always. “If strengthening the public domain means delivering heavier regulations on Big Tech or breaking up large companies”, she notes, “we have to consider the option”.

 

Europe has moved faster than other governments with the issuing of the Digital Services Act Package including the Digital Markets Act (DMA), the Digital Services Act (DSA) and the AI Act which aim to create a humancentric, safe, and fair digital space for users and businesses. “Tech Gurus may need time to adapt to the new regulations, but we are heading in the right direction”, comments Gerbrandy.

 

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(1) - Van Dijck, J., Open societies and the technical-digital perspective in The Open Society and its Future – Think Paper Series #1, Institutions for Open Societies Think Paper Series, Utrecht University, 2020.

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This is an article from the Horizon Future Watch Newsletter (Issue 3, October 2023), presented by Foresight on Demand

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