This presentation by Ioannis Lianos, President, Hellenic Competition Commission, was made during the discussion “Line of business restrictions and competition concerns” held at the 69th meeting of the OECD Working Party No. 2 on Competition and Regulation on 8 June 2020. More papers and presentations on the topic can be found out at oe.cd/lobr

1. Competition Law for the Digital
Era: A BRICS Perspective
Ioannis Lianos
President, Hellenic Competition Commission
Professor of Global Competition Law and Public Policy
UCL Faculty of Laws (on leave)
Views are personal

2. Digital Platforms: Competition
policy and Industrial Policy
2

3. Data
protection
Comparative Table: Data portability
in BRICS, EU and US
 Brazil: General Data
Protection Law (2018)
 Russia: Law on Personal
Data (2006)
 India: right to privacy
Justice KS Puttaswamy And
Another Vs. Union of India
and Ors (2017); Personal
Data Protection Bill (PDPB)
(2018) in consideration
 China: No regime of data
protection and a right to
privacy, legal practice tends
to apply The Law against
Unfair Competition to
provide ultimate protection
when no protection can be
sought elsewhere
 South Africa: right to
privacy (S. 14 of the
Constitution) & Protection
of Personal Information Act
(POPIA)[ not yet in effect]

4. Limited effects of competition
law to promote inter-ecosystem
competition
• In markets with strong network and
learning effects, once few firms are in
operation, the addition of new
competitors, even under free entry,
does not change the market structure
in any significant way
• Although eliminating barriers to entry
can encourage competition, the
resulting competition may not
significantly affect market structure
• In markets with strong network and
learning effects, antitrust authorities
may not be able to significantly affect
market structure by eliminating
barriers to entry
4

5. App stores
Source: https://www.statista.com/statistics/276623/number-of-apps-available-in-leading-app-stores/
Number of apps available in leading app stores (2019)

6. Multi-homing
(e.g. social media)
1 app
5.40%
2 apps
30.30%
3 apps
36.70%
4 apps
12.50%
5 apps
6.10% 5 and more
9.00%
Source: iResearch's 2017 China Mobile Social User Insight
Report
Number of Mobile Social Applications used by
Chinese Mobile Social Users (2017)
77.20%
6.60%
3.20%
13%
Source: China Internet Association China Internet
Development Report 2018
Baidu Sogou 360 others
Market Structure of Search Engines in
China

7. • Business Eco-systems
• modular architecture, non-
generic super-modular
complementarities
• they replace industries
• Market power in multiple
segments of the chain
• Allocation of the total surplus
value of the value chain: vertical
competition and distributive
justice considerations (fairness)
• Extraction of revenue and
capture of value: limiting the
market power of other
segments of the value chain to
increase your share
• Different ways of public action
(competition law, net neutrality,
compulsory licensing,
regulation)
• Financialisation
7
Vertical Competition: Digital Value
Chains

8. 8
Futurity, Financial Markets
and Value

9. Fictitious commodities and scarcity:
human attention
9
‘(w)e are moving from a world
where computing power was scarce
to a place where it now is almost
limitless, and where the true scarce
commodity is increasingly human
attention’
Satya Nadella, Microsoft Canada,
Consumer Insights, Attention spans
(2015),
‘(o)ver the coming century, the
most vital human resource in need
of conservation and protection is
likely to be our own consciousness
and mental space’
T. Wu, The Attention Merchants
(Atlantic Books, 2016),
M.M. Sohlberg & C.A. Mateer, Cognitive
rehabilitation: An integrative neuropsychological
approach (Guilford Press, 2001).

10. • Dimensions of power relevant for
competition law analysis
 Resource dependency horizontal or
vertical (e.g. market share,
bottleneck power, economic
dependence, technological
dependence)
 ‘Architectural advantage’: Being in a
position to influence the way the
industry is organised/structured and
the value allocation between the
industry (or ecosystem) actors.
 Power emerging out of central
positioning in networks and
informational asymmetries
 Positioning not necessary in adjacent
vertical markets
 Advanced Social Network Analysis -
metrics of centrality
10
Different dimensions of power in a
complex economy

11. Vertical Power I
Power family Type of power Source of power Modality of
power
exertion
Scope of
power
sourcing
exertion
Existence of
standard
metrics or
modelling
Process-based Process-based Capacity to apply credible
sanctions that affect another
agent’s gains
Credible
sanctions that
affect another
agent’s gains
Vertical and
horizontal
Yes
Resource
dependence
Standard
market power
Market structure Affecting
equilibrium
quantities or
prices in a
market
Vertical and
horizontal
Yes
Resource
dependence
Exclusionary/b
ottleneck
Supply-side (e.g. an essential
facility or input, a technology) and
demand-side (e.g. high switching
costs, strong positive network
effects) conditions creating a
bottleneck
Exclusion from
the bottleneck
resource
Vertical Yes
Source: B. Carballa & I. Lianos: Vertical Power: Concept and Metrics
11

12. Vertical Power II
Power family Type of power Source of power Modality of
power
exertion
Scope of
power
sourcing
exertion
Existence of standard
metrics or modelling
Resource dependence Social exchange theory Differential
dependency
between value
co-creators
Obtaining a
high share of
the co-
created
value
through
bargaining
Fully
vertical
No
Positional Panopticon A position in the
network of value
co-creation that
allows to collect
valuable
information
Strategic use
of the
information
to obtain a
higher share
of value
Fully
vertical
No
Positional Architectural Capacity to
influence the
industry
architecture by
affecting at least
one of its
interphases
(technological,
institutional,
social)
Influencing
the industry
architecture
to obtain a
higher share
of the value
created in
the industry
Fully
vertical
No
Source: B. Carballa & I. Lianos: Vertical Power: Concept and Metrics
12

13. A Legal institutionalist
perspective
• The institutional/legal foundations of value extraction in digital
capitalism
• A toolkit approach
 Pervasive utilities’ style regulation (but is it a natural monopoly?)
 Soft regulation via codes of conduct
 Creation of missing data markets and increasing commodification
(of attention)
 Establishing property rights for the new fictitious commodities (data, attention) or data
portability
 More than just property rights : Indian Draft National e-Commerce Policy (2019) pp.
14-15 ‘(t)he data of a country, therefore, is best thought of a collective resource, a
national asset, that the government holds in trust, but rights to which can be
permitted. The analogy of a mine of natural resource or spectrum works here’
 Countervailing powers – collective bargaining
 Collective bargaining from freelancers/users etc.
 Polycentric competition law
13

14. Some extra reading… 
Some recent papers available at
https://papers.ssrn.com/sol3/cf_dev/A
bsByAuth.cfm?per_id=565608
BRICS Digital Era Competition
Report:
http://www.bricscompetition.org
/materials/news/digital-era-
competition-brics-report/