Podcast Transcript:

[Udit] 0:13

The European Union’s digital market Act, or the DMA was published in the official journal of the EU on October 12 2022, and entered into force on November 1 2022. The legislation aims to radically transform how big tech companies operate by implementing regulations that limit the market power of big technology platforms, foster competition, and provide additional privacy measures to customers. Legislation empowers the European Commission to designate certain tech companies as gatekeepers and impose obligations on them in relation to data, advertising, e-commerce, interoperability, and the commercial relationships between the service providers customers and end users. The review process by the EC to designate companies as gatekeepers is scheduled to start on May 1, 2023. The selected companies will have the opportunity to depart this designation. It is expected that a total of 13 large technology companies including Apple, Amazon, Google and Alibaba, amongst others will be designated as gatekeepers. 

While the EU policymakers have hailed this legislation as the EU’s next big step into the digital age. The reception outside the EU has been met with mixed responses. Companies such as Apple have already expressed their displeasure, stating that the regulations will lead to unnecessary privacy and security vulnerabilities for its users and prevent the company from charging for the intellectual property. Several members of the Congress have also written to the President of the United States, expressing their concerns that DMA unfairly targets American companies, while giving an undue advantage to European, Chinese and Russian entities. There is, however, a consensus that the DMA, much like the GDPR will have large scale ramifications and will in all likelihood, change how big tech companies have operated for the past 20 years. 

To further explore the implications of the DMA we have with us Prof. Dr. Jürgen Kühling. He holds the Chair for Public Law, Real Estate Law, Infrastructure Law, and Information Law at the Faculty of Law of the University of Regensburg since 2007. Prof. Jürgen Kühling is also a member of the German Monopolies Commission since July 1, 2016 and elected chairman since September 2020. We are very excited to get his nuanced opinions on the DMA, and how it aims to foster a more competitive market environment while simultaneously fostering better end user privacy.

[music]

[Shabrina] 2:52

Hi BTLJ podcast listeners. I’m Sabrina Khansa. 

[Mahima] 2:56

And I’m Mahima. And both of us are pursuing the law in tech certificate specialization from Berkeley Law School.

[Shabrina] 3:03

In today’s episode, we have Professor Jürgen Kühling, who holds the chair for public law, real estate law, infrastructure law and Information Law at the Faculty of Law at the University of Regensburg, Germany. Professor Kühling has been a member of the monopolies commission since July 1, 2016 and elected chairman since September 2020. We’ll be talking about the new Digital Markets Act or the DMA, which surprisingly, is entering into first today, November 1st 2022. Hi Professor Kühling! 

[Professor Kühling] 3:35

Hi, Shabrina! 

[Shabrina] 3:37

Thank you for sitting down with us today. We are very excited to explore the implication of the DMA with you. First and foremost, can you give us a brief overview of the Digital Markets Act for listeners who are unfamiliar with the law?

[Professor Kühling] 3:52

Yeah, first of all, thank you very much for having me. It’s a pleasure. It’s always been a pleasure to be at Berkeley and now it’s nice to be there on the sort of digital version. In any case, the digital market act, and as you said, it’s the best day to talk about it, because it just entered into force today. the basic aim is to sort of regulate or at least guide gatekeepers, like Google, Amazon, Meta, Facebook, Microsoft, most of them big US American companies, we have to see that also some European ones, but mostly those big American companies who are gatekeepers in the digital markets, very important gatekeepers, and the idea is to keep up a fair and contestable market in the digital area. For having or pursuing this aim, there are a lot of obligations in this Digital Markets Act. I just give one example, to make it maybe a little bit more comprehensible, what’s in this act and it’s one of the cases which is also being pursued by the European Commission. It’s a case against Amazon. And Amazon, as you all know, has various roles in the various digital markets. One important role is, of course, that it is the marketplace for a lot of businesses, but it is also selling its own goods on its own platform. So it’s also in the retail business, and therefore it has sort of a hybrid character. And the question is now, is Amazon using the business data it gets from the businesses in order to improve its own situation and to sell its own goods in a better way on this platform and this sort of hybrid role, this vertical integration, and problems like that, are tackled by this Digital Markets Act.

[Shabrina] 5:49

So this DMA actually enters into force today, as you’ve mentioned, and we are very curious to know, what inspired the European Union member states to develop and implement such a regulation?

[Professor Kühling] 6:01

Yes, I already hinted at some part of an answer to this question, because we had a lot of cases against, as I said, mostly the Gotham companies. The impression was that these cases on the basis of the classical search to say competition law, were too slow. Therefore, the idea was, how can we speed it up, if all those cases take like years. There’s also evidence that in some of those cases, we have winner takes it all markets, which means that we have a typical in this markets, and the decisions will only be reached in a moment in which the problems are already very, very big, and then it’s too late. So the impression was, what the commission is doing is too little too late. Therefore, we should have some sort of faster working rules. All of those rules are inspired by cases of the European Commission, but also of cases by the national competition officers, like for example, the German, a cartel office, which is, well, in one big case against Facebook. I don’t know if you heard about that in the United States. And one of those decisions, all of those cases are sort of the inspiration of those rules, which are now in the Digital Market Act.

[Shabrina] 7:25

So in terms of regulating this borderless digital market, what regulatory framework existed in the EU before the DMA itself?

[Professor Kühling] 7:34

Well, basically you can say we have this very general competition law, and it could cover all of those small rules so as detailed rules, which are now in the Digital Market Act, so to say it’s rather sort of a specification of what we have already and therefore, it’s not really substituting some other kinds of law, we will still have this basic competition law. And this Digital Markets Act adds up to these classical competition law rules. 

[Shabrina] 8:07

As we all know, EU itself is a group composed of several member states, as you mentioned. So how will this DMA work in conjunction with other EU member states’ national competition law?

[Professor Kühling] 8:18

That’s a very contested question in the European Union, because you have to imagine the German cartel office is also a very proud competition authority. And it has handled a lot of cases in the last year. We just changed the German law two years ago, in order to help the competition authority to be more effective. And therefore we have a strong discussion about what happens now to all those new rules in some of the member states. But the basic idea is that we want to harmonize our competition law, which is an advantage for the consumers, but also for the companies. I can imagine if I was Facebook or Amazon, I don’t want to deal with 27 different jurisdictions. Therefore, the idea is that this Digital Markets Act harmonizes, in the area in which it is applied, and the national competition authorities will sort of help the European Commission to enforce this Act, but they will sort of lose their power to have cases in the same field. So once this act is really working, the national competition authorities can have sort of some kind of investigation, but later on, they have to give these investigations to the European Commission. And it’s up to the European Commission to enforce those rules and only in like some, well, areas which are not touched upon by this digital markets act like for example, companies, which do not fall under this Act or platforms which do not fall under this Act. In these areas, the national competition authorities are still in full force.

[Shabrina] 9:59

So now let’s dig deeper on the requirements, obligations, terms, and rules in this regulation professor. So DMA introduced a rule for providers of digital core platforms, as you’ve mentioned early so called “gatekeepers.” As far as I understand, DMA aims to prevent these gatekeepers from imposing unfair conditions on businesses and end users in order to foster competition. Could you explain more regarding this “gatekeepers” term? What is this? What obligations do these gatekeepers have? To help our listeners understand more about this new term. 

[Professor Kühling] 10:36

It’s absolutely, like you said, the addressees of this DMA are gatekeepers, and gatekeepers have to be very well, they have to have a significant impact on the internal market. This is the first condition. The second is they have to provide one, at least one core platform service, which is of very relevant importance as a gateway for business users. And the third precondition is that it’s not a sort of short term, situation, but it is entrenched and durable, the position of the gatekeepers and only under those three conditions in a designation process, which will now start, the European Commission can decide that this is a gatekeeper that a specific company is a gatekeeper. So what core platform services are addressed? Well, we had a lot of discussions on that. And some of the platform services were there right at the beginning, like for example, online social networking services, video sharing platform services. But then we also had discussions, shall we have virtual assistants on it or not? How flexible should we? How broad should we have the idea of the core platform service right from the beginning. And the final compromise was to have it already rather broad what a core platform service is. So all the cases in which we saw difficulties in the last years are sort of now part of this core platform, service definition. But then I said they have to have a significant impact on the internal market and this is done by numbers. So they need to have an NGO union turnover of more than 7.5 billion euros. So it’s really only very large companies, which will be the addressees of this digital market act. And as far as users are concerned, they need at least 45 million monthly active end users. So even if you have a large annual turnover, this is not enough you also need this large amount of consumers using your service. So at the end, we think it’s going to be only like one hand or two hands like ten, maybe ten companies, which will be addressees of this DMA.

[Shabrina] 13:09

Professor, if a tech platform, this big technology platform, failed to comply with the DMA rules that you’ve mentioned earlier, what are some of the consequences that they may face?

[Professor Kühling] 13:21

Well, that was also a point of debate, like, for example, I refer to one of those obligations that this is self preferencing, you’re not allowed to self to sort of give your own business or retail business advantages. Then we have interoperability obligations. We have an obligation to give access. All of these obligations are in two different articles in one article, they should be self-enforcing, without any specification and another article, there, we have a sort of a regulatory dialogue with the European Commission in order to specify what exactly the rules are supposed to mean. And of course, the discussion was, well, those rules are maybe not even specific enough, and the companies will not know how to behave. Well, to be fair, this is the problem of competition law anyway. I mean, at the moment, we even have broader rules, and the companies still have to judge if they, if what they do is an abuse of a dominant position or not. So in any case, I would say the legal uncertainty is not getting bigger, but it’s rather getting lower. And this is very important. As I am a lawyer and not an economist, it’s important to have legal certainty, particularly facing the fines because the fines are heavy. They are particularly heavy, even if they are comparable to the classical EU competition law. They have a sort of escalation, so to say. If it’s their first fine for an abuse of one of those rules it would be a fine of up to 10% of the global turnover of the company, which can be a lot, a lot of money. We already saw those fines like 1 billion euro fines against those big tech companies. So this is not very, well, it’s not a big surprise that we have those strict fines. But if you have a second violation of the DMA, the amount will rise up to 20%, which could be really important for the companies and dangerous, maybe if you have to pay 20% of the company’s global turnover. This was even more open to debate, if there is a third violation, the DMA says this is a systematic non-compliance and therefore we should even have stricter fines and the strictest fine can even be that we break up the company. So what we know at the moment we see in the US courts, the discussion if Facebook and Instagram and WhatsApp has to be broken up. This is the ultimate sanction. Also, according to the DMA, if there is a systematic non-compliance, other sanctions could be that you’re not allowed to buy new companies, ban on acquisition, or there are a lot of different possible fines. And of course, this is very strict. But I mean, you can only apply those fines if you have strict evidence. And of course, it has to be proportionate and all that. And it’s going to be checked by the European Court of Justice. So at the end, I guess the European Commission will be smart enough not to overdo it with the fines.

[Shabrina] 16:53

Thank you so much Professor Kühling, I think there was a really good overview and it gave us a proper base knowledge on this new regulation. I learned so much, and I’m sure my audience did as well. So if you’re okay, I will go ahead and pass this along with Mahima. And we can learn a little bit more about the other interesting aspects related to this DMA.

[Mahima] 17:12

Thank you, Shabrina, I will take it forward from here. And we will dig deeper into the topic, wherein we will talk about GDPR relevance to the DMA, Germany monopoly commission duties, and the effect of this DMA on the big tech. While switching gears. I would like to talk about data portability, and why this is important for data controllers. For our listeners who have never heard of this term. Could you please define what data portability is? And why is it important?

[Professor Kühling] 17:43

Yes, well, the idea is quite simple. And I think also very sensible. I mean, one of the big advantages of those ecosystems of those gatekeepers is that they have very large amounts of end user data at their disposal. So if you’re a new entrant and you want to go into competition with those companies, one way to sort of lower the barriers to entry would be that you get access to those data. And, of course, due to our very strict data protection rules, you will not get access to the data without sort of consent of the end users. One idea is the idea of data portability. So, if the end user wants to switch the service or wants to use two services, he can take his data from one of those companies and switch them to the competitor. Like, for example, if you look at Amazon, and if you have a lot of written a lot of book reviews, and there’s a lot of data is saying what are your preferences and you want to use a different books telling a company that it might be interesting that you can just switch your data and move it to the competitor. So the competitor knows a lot about your consumer preferences already. And that is the basic idea of data portability.

[Mahima] 19:09

Speaking of the strict regulation, the EU implemented the General Data Protection Regulation, otherwise known as the GDPR. The GDPR regulates how data controllers process data. Could you please shed some light on the impact that the GDPR has had on data portability for big tech companies?

[Professor Kühling] 19:30

That is a very good question. Because the point is the the devil lies in the details, and this is what we realized, with the data portability. Because for the listeners, now we have some further data portability rules in the DMA. But we already have, since 2018, a data portability rule in the general data protection regulation. So we should have some experience. And this is the question you’re asking. But to be honest, as I said, the devil lies in the details, and we have a lot of technical details. We have a lot of data protection issues. So I have to say I’m sort of sorry, we do not have so much experience in the data portability area so far, because we haven’t really gone very far yet. We do not have worked out all those technical issues, how to transfer the data. So, so far, and we will see if this happens to some other rules of the DMA, I think it’s easier to design a rule in theory than to make it work in practice. The idea is that with those additional rules in the DMA, maybe there is a sort of a boost to data portability. We will soon have more. Maybe also more intermediaries, more companies, which are helping the consumers to transfer their data from one of those big tech companies to a competitor. But so far, it hasn’t really worked out very good. I have to admit.

[Mahima] 21:06

It will be interesting to see the future.

[Professor Kühling] 21:08

Definitely. 

[Mahima] 21:11

As the chairman of the monopolies commission, could you also please briefly explain your role? Our listeners are very excited to know.

[Professor Kühling] 21:18

Yeah. Well, I think this is an institution, which does not does not exist in the United States, because you also have the competition authorities, which we also have in Germany. And in Germany in the late 70s, because we had big problems with concentration, and therefore we introduced a stricter competition law. And at that time, we also introduced the monopolies commission. Our job is to give advice to the government, to look at the job the competition authority is doing, and to give advice. How should we change the law? How should the competition authority change its practice? And therefore we are sort of an advisory body. But in some specific areas, we can also have a more relevant role of, if may say, one of those areas is exactly the digital area because we have this new German law to which I referred. This new German law refers to those big tech companies as well. And here as one instrument to speed up the procedure, there’s only one court decision. Once the German cartel office has taken a decision, it goes directly to the highest German court, and the highest German court can then ask us as a monopolist commission how we would judge this case from an economic perspective because our institution consists of lawyers, but mostly of economists and so we can give advice directly to a court, like an amicus curiae, you might say, but we will see how much our influence will be. Then, at the moment, our influence is rather than influence of giving advice, but in advice, I have to say, to which the government and also the competition authority listens. So well, of course, I’m very subjective on that question. But it’s a lot of fun working in that institution and seeing that, you know, you can give advice and help. And this advice is realized, also in the change of the law, but also in the practice of the cartel office, and also in the practice of the European Commission.

[Mahima] 23:39

As you mentioned, that Commission regulates economic perspective, we would like to know what role did Germany monopolies commission play in enforcing this particular regulation?

[Professor Kühling] 23:54

In enforcement, we don’t have a role, our role again, would only be to give advice and to be honest, hopefully, the listeners will still continue to listen what I say, I have to be honest that the influence, of course of the European Commission as we are a German institution is smaller than our influence at the German level. But in a lot of areas, we are in very close contact to the Commission and the Commission follows also our advice. But in the DMA implementation, it will mostly be up to the European Commission, even the national competition authorities do not play a relevant role anymore. They can do, as I said, some sort of investigations at the beginning, but then they have to hand over it to the European Commission. The European Commission is the most powerful institution. So for your next session, you should invite the European Commissioner, she is really important. 

[Mahima] 24:57

Speaking of European Commission, how do you think it will ensure that this DMA keeps up with the ever-evolving digital sector?

[Professor Kühling] 25:08

Yeah, that was also a point of discussion. There is an inbuilt update mechanism. Like for example, the Commission particularly and it has the chance to update the catalog of core platform services. And there is a fast track legislative process according to which this DMA can be updated. And I think this is a very smart mechanism. I’m very optimistic once the commission realizes that some of the relevant cases will not be able to be decided under the DMA that they will really get along adopting the DMA.

[Mahima] 25:56

As we know, antitrust laws and the DMA will inevitably overlap. How does the commission plan to address this issue?

[Professor Kühling] 26:05

Well, I think it’s good that it overlaps because the European Commission will still be able to enforce the traditional, the classical broad competition law. And once as I said, it realizes that the DMA is not covering a certain situation, the Commission can open up a procedure according to the classical competition law, and then go ahead and see if it can handle the case under the classical competition law, and if this is not possible, it can, as I said, in this fast track-built in mechanism, sort of adjust the DMA. So I would say that there is no problematic overlap, but sort of a fruitful, inspirational overlap between the classical competition law and the DMA. And it’s no problem because it’s in both cases, the European Commission, so there is no danger of any sort of decisions which are not in line with each other.

[Mahima] 27:08

Thank you, Professor for giving us the brief overview on the commission and your role. We would now like to explore the effect DMA has had on the big tech. Where do you see the future of big tech companies and this DMA?

[Professor Kühling] 27:25

Yes, I think some of the rules are in the spirit that maybe we will have competition, even at the level of the core platform services themselves, like we will have a second Google. I’m very skeptical that this will happen. Google in Germany, for example, has a market share for in the search area of more than 90%. Even if we give access according to the DMA to click and query data, I don’t think that we will have a second Google soon. What I’m much more optimistic about is that we need competition in the adjacent markets. To come back to my example from the beginning, if you look at the Amazon case, I think it’s very important. I mean, Amazon is doing a fantastic job having a great platform, but it shouldn’t hinder the competition in the adjacent markets. Like, for example, you want to have all those businesses selling their goods on Amazon. Maybe someday we will have a second Amazon or we do have in some specific areas, but the general platform like Amazon, I think it’s a winner-takes-it-all market. So we will probably not have a second Amazon. But in any case, we will have in the adjacent markets, a lot of competition. And that’s very important for the consumers. I’m very optimistic that the DMA helps us to keep up the competition in those adjacent markets. I think it’s good for the consumers but it’s also good for the big tech companies, because without competition, they will not keep on with their pace of innovation. Therefore, I think it’s good for everybody, and very optimistic that it will help in this area.

 

[Mahima] 29:15

Yeah, speaking of the fact that DMA’s purpose is to promote competition in adjacent markets. Do you think that the goals that the creators of the DMA had in mind will be accomplished with this act?

 

[Professor Kühling] 29:31

As I said, I’m optimistic for the adjacent markets. We as a Monopolies Commission have also been very much in favor of the whole design of the DMA. We did have some rather minor proposals how to make it even better. Like for example, one of point of the critiques also of the big tech companies was that there is no efficiency defense. The fear is that we might have a loss of innovation because we do not have this efficiency defense. So we will see where the first case is being decided and how the big tech companies will react. I think if we do identify issues like that, we will have an amendment of the DMA and it’s going to be changed. Because one point is quite interesting to see, the whole DMA legislative process was impressively fast. So I’m also very optimistic that once we realize that this DMA sort of is too strict, it has overdone it, we have disadvantages in the European markets, which we do not have in the US markets without those strict rules, I think we will adopt those rules. So I’m pretty optimistic that even if it doesn’t work out, in all the areas perfectly, we will change the law and we will learn from the application of those rules in the digital markets. And sort of in a very general term we had underenforcement so far. If there is now the danger of overenforcement, we will see it and we will change the rules.

[Mahima] 31:07

We understand that DMA is enabling healthy competition across digital media. Overall, however, we are concerned to know if the DMA will do more harm than good. For instance, an iPhone owner starts downloading apps from alternative platforms. Will doing so expose the device to more risk of fraud and malware issues that Apple has been trying to protect users from?

[Professor Kühling] 31:35

Yes, we see the point and to be honest, I’m a big fan of Apple. I’m sitting in front of like ten Apple devices at the moment. So even personally, I really see this point and one of the big advantages of Apple is, as you said, that it’s doing a very good job in that area. Well, we will see what changes now, we are not very, we do not think I guess that the security precautions will not or will definitely prohibit some sort of competition, because what Apple will still be able to offer is that any changes, any competitive service providers on its platform have to be under review. They can be authorizing those providers, and they can ask them to pursue high standards. Also, as a customer, you might decide if you want to stick to 100% Apple products and Apple implementations or if you want to try to use competitors. So we are not that skeptical that sort of trying to have a little bit of competition, like, for example, on payment systems, that this doesn’t work without sort of destroying the whole apple system and endangering its good services it’s doing and the security it is providing. So while we will see that, but we are optimistic that those problems can be solved. To be very clear, you’re not obliged to sort of provide the platform to any dangerous service provider. So you can sort of enforce high security standards, nevertheless. 

[Mahima] 33:23

Further, what do you think? What impact will the DME have on advertisers globally?

[Professor Kühling] 33:30

I think, yeah, advertisers, I think, first of all, you have to see, everybody knows how important advertisement is for the financement and financing of a lot of services. And particularly in Germany, and in Europe, everybody’s much aware also about media services, which are financed through advertising and how to keep up a good economy in that area. So it’s a very delicate and important question to my mind. And what the DMA is providing at the moment if I think it’s quite moderate, because it only says that, like, competitors should have more access to measuring tools for their own performance on the gatekeeper platform. I think this is rather a moderate instrument trying to sort of provide or to sort of make the life of competitors easier than it is at the moment. So for the DMA, I’m not that skeptical. I have to admit, nevertheless, that we have some other legislative processes at the moment. I’m skeptical that those rules, which are now coming in other acts, are not as smart as the DMA. To give just one example, we also have a DSA, a Digital Services Act. Within this DSA, we now have a rule, which really makes it difficult to have targeted advertising. I think this is a big mistake, because I think it should be left up to the customer. If he wants to pay a service with his data, or with money, or with his attention watching advertisements being targeted or non-targeted, this should be left to the customer. We have a certain tendency, which might be even for me, and for the Americans, I guess even more, be identified as a little bit paternalistic. This is what we have now in this DSA and we’ll see how this rule will work out. Because you have to be honest, if we prohibit targeted advertising. As a matter of fact, we sort of have the tendency to do that, because even according to the GDPR, the rules are very high to be allowed to have advertisements being targeted. Then, of course, we need some other resources to pay for those excellent services. And this will be money. And some people might prefer paying with their data as long as it is transparent and fair. So I think maybe the rules are overdoing it in that area a little bit. But this is not an issue of the DMA. But of the DSA.

[Mahima] 36:23

Speaking of DSA, could you please give us a brief overview of DSA?

[Professor Kühling] 36:27

The DSA is, apart from this small point to which I just referred, is to my mind as I’m also a professor Information Law and not as the as the chairman of the Monopolies Commission, which is even more important because the Digital Services Act primarily helps to regulate services such as Twitter, Facebook, as far as content is concerned. Because I mean, I guess that in the United States and Europe, we sort of have a quite different approach. Like, for example, what we are watching now in the United States is that Elon Musk can pay, and buy Twitter, and can decide if it should be run in this way, or in that way, this is not the European approach. According to our European standards. We also have a very important First Amendment, freedom of speech is very important, but it’s also very important to, you know, safeguard personal rights, privacy, etc. And this Digital Service Act tries to help to have healthy community standards on those platforms. It’s a, it’s a service, act on the question of hate speech, fake news, and that stuff. I think, for safeguarding democracy, I would say that it’s very important that it’s not left to the rules of the intermediaries. But it should be up to the democratic society to decide how we want to get along with fake news and with hate speech, and how we want to allow our, well, our public discussions being infected by those types of communications. So this really brings us far away from classical competition law, but into the heart of democracy. But this is not what I’m saying now is not as the chairman of the Monopolies Commission, because we’re not in charge of those questions.

[Mahima] 38:27

As you mentioned a while ago, the DMA promises stronger privacy controls by ensuring that the platforms must obtain explicit permission from consumers to use their personal data for targeted advertising. What challenges might these privacy protections bring for users? For example, currently, many websites require users to accept cookies. Can we expect similar policy shortcuts, which may hinder the experience of users?

[Professor Kühling] 39:01

Yes, as I said, this is probably not a problem of the DMA. Because the DMA rather regulates that the competitors get access to their consumer data being stored by the platform. This is a competitive advantage they get, according to the DMA. And then they have to ask the end users if they agree to it. So this rule in the DMA, I think, is a fair balance rule. The question will be how can we sort of find a way to easily obtain such? Well, how do we get the consumer to agree to such an arrangement without making it too complicated. ? And those cookie agreements, which you refer to is not a good solution because we have this click fatigue. Everybody is really very much annoyed in Europe, because he has to click through it anyway. So we are looking now for different solutions, how we cope with it. And I think the cookie solution is no good solution. But maybe we find a better solution for this transfer, which is allowed according to the DMA. But this problem is not being produced by the DMA. This problem is being produced by the GDPR. We still haven’t found a good solution for that. Because the balancing we have we want to have content, but this type of content is of course, how can I put it politely? It’s not well functioning. It’s getting on our nerves. Then everybody clicks and says, “yes, yes, yes, I want to get the service.” So we are trying now to develop alternatives. But this is very difficult. So you’re completely right. We have user unfriendly rules at the moment. We haven’t worked out user friendly rules, sort of allowing them to stick to their sort of informational self-determination that they can really decide on it. We need some other institutional arrangements, like as I said, intermediaries could be of help like I sort of go to my intermediary and tell him how my policy is like, and then he does it all for me and I don’t have to click every five minutes once I’m surfing in the internet. But this, to be honest, is not very satisfying at the moment in the European Union. But this is a GDPR problem, not a DMA problem.

[Mahima] 41:26

Moving on, given the large global presence of digital platforms, do you think it would make sense to have uniform international regulations? While the DMA is a step towards that direction, the global regulatory landscape still remains unclear. What do you think the future holds in this regard? And do you have any sort of concerns in respect to this?

[Professor Kühling] 41:51

Yes, I think some of the rules might sort of set a global standard. Like, for example, we have this discussion already with the GDPR. And I now stick to a, a term being from Paul Schwartz, in which class I was able to be and he’s a friend and a great guy and he calls it the Brussels effect. That we have the sort of standard, which is being produced in Europe, and then it might be applied also in different countries around the world. I think with the GDPR standard, at least to some extent, some of the rules are smart. And they might be helpful as a global standard, at least in some countries. But not global, that I think that like, for example, we will have a common approach with China or other countries like that, because we have so many, so many differences, how we approach, how we should get along with data, that I don’t see any real global standard. With a DMA, I could imagine that we might have, to some extent the same effect, because I think there are some rules in it, which might inspire at least some other countries, if we get along with it. If we show that we can really sort of protect the competition, as I said, and the adjacent markets, this might inspire some other regions and countries in the world. But, we will see. They have to work out. They have to be convincing. And this is a very slow process. My impression is, for example, from the US legislative process, that we had a lot of proposals which were close to what we proposed, that we have now in the DMA. But as far as I understand it, most of those proposals will not turn out to be some kind of statute one day. So, we see at the moment that your European legislative process is very fast, maybe at some, I refer to one example, maybe it’s sometimes even too fast. But in any case, Europe is really willing to sort of regulate the digital markets and the digital services to an extent which is good for the consumers and good for the democracy. And it’s acting very fast. That might be an inspiration for some countries. But to be honest, I don’t believe in any global rules because we are so different. Our cultures are so different all over the world. That I mean, it’s, it’s practically impossible.

[Mahima] 44:34

Thank you so much for sitting down with us and sharing your valuable insight on DMA with us professor. It has been a delight to have you. All of us have learned so much.

[Professor Kühling] 44:44

Thank you very much for having me. It was a pleasure.

[Udit] 45:06

Thank you for listening! The BTLJ Podcast is brought to you by Podcast Editors Isabel Jones and Eric Ahern. Our Executive Producers are BTLJ Senior Online Content Editors Katherine Wang and Al Malecha. BTLJ’s Editors-in-Chief are Dylan Houle and Jessica Li. If you enjoyed our podcast, please support us by subscribing and rating us on Apple Podcasts, Spotify, or wherever you listen to your podcasts. If you have any questions, comments, or suggestions, write us at btljpodcast@gmail.com. This interview was recorded on November 1, 2022. The information presented here does not constitute legal advice. This podcast is intended for academic and entertainment purposes only.

 

Further reading and references:

Bill Batchelor, Frederic Depoortere, Aurora Luoma, Giorgio Motta, and Ingrid Vandenborre, EU Digital Markets Act Enters Into Force on November 1, Creating New Regulatory Regime for Large Tech Platforms, Skadden, Arps, Slate, Meagher & Flom LLP (Oct. 12, 2022), https://www.skadden.com/insights/publications/2022/10/eu-digital-markets-act-enters-into-force#:~:text=The%20DMA%20sets%20out%20rules,and%20national%20competition%20law%20rules

Digital Markets Act – The New Era of EU Digital Regulation for Big Tech, Akin Gump Strauss Hauer & Feld LLP (June 1, 2022), https://www.akingump.com/en/news-insights/digital-markets-actthe-new-era-of-eu-digital-regulation-for-big-tech.html

Ryan Browne, EU targets U.S. tech giants with a new rulebook aimed at curbing their dominance, CNBC (Mar. 25, 2022, 5:41 AM), https://www.cnbc.com/2022/03/25/digital-markets-act-eu-targets-big-tech-with-sweeping-new-antitrust-rules.html

Bipartisan Lawmakers Urge President Biden to Demand Changes to Discriminatory EU Tech Bill, U.S. Congresswoman Suzan DelBene (Feb. 23, 2022), https://delbene.house.gov/news/documentsingle.aspx?DocumentID=3047

Stefan Modrich and David DiMolfetta, Big fines can scare Big Tech, but enforcing Digital Markets Act is key – experts, S&P Global Market Intelligence (Apr. 1, 2022), https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headlines/big-fines-can-scare-big-tech-but-enforcing-digital-markets-act-is-key-8211-experts-69620415