Below, we have provided the full transcript of our panel discussion Mobile Ecosystems: Competition, Choice and User Protection. Read below to see the timely discussion where a panel of experts deepened the discussion regarding this topic, and how it specifically relates to Japan.
Hello, I am Takako Onoki. Today I will be moderating the CPI TV program, Mobile Ecosystems: Competition, Choice, and User Protection.
Competition in the digital economy apparently is becoming competition between ecosystems. Joining me today is a panel of practitioners and academics at the forefront of these issues. I have Tatsuya Tsunoda, attorney at Nishimura & Asahi law firm, Yusuke Zennyo, Associate Professor at Kobe University, and Leni Papa, a consultant for the OECD.
We are going to get started with some opening statements, and then we’ll have some interaction and some questions. Let me get started. So first, Yusuke, what do we know about the economics of mobile ecosystems?
Thank you for giving me the opportunity to talk about this issue. Let me use English first, but I will change and switch to Japanese.
There are two things I would like to talk concerning mobile ecosystems from a perspective of economics. The first one is that a monopoly is not necessarily bad, in some situations, especially when it comes to network goods. The second one is related to the existence of competition across different submarkets of mobile ecosystems.
On the first point, as you know, a very high level of market concentration has become a big issue in recent policy debates. For example, Apple’s App Store and Google’s Play Store have been criticized to have nearly a monopoly, gatekeeper position, in each mobile OS market. But in terms of economic welfare, a monopoly is not necessarily bad, especially in markets with network externalities.
For example, let me consider the following situation. There are multiple networks competing in a market, and they are not completely compatible with each other. In this case, users are divided into different networks. So this user segmentation makes it difficult for users to enjoy a large network size. In contrast, if a monopoly network exist in a market, all users join the same network, and they can enjoy the largest network size and the network bandwidth.
Depending on the market environment, this benefit coming from the expansion of network size will dominate the negative effect associated with an increase in price. In that case, a monopoly can generate a higher social welfare and consumer service. Of course, this is not the case if the monopolist sets a very high, very expensive price to consumers. This is my first point.
The second point is more important, I think. As you know, the current state of mobile ecosystems is very complex. There are many kinds of different submarkets. More importantly, those submarkets are closely interconnected with each other. This is an interesting feature of mobile ecosystems that cannot be found in other product markets. So, someone can consider that there is competition, not only within each market, but also competition across different submarkets. In this case, even if a monopolist exists in each submarket, we can facilitate cross-market competition between those monopolists across different markets places. So if this is possible in practice, I think we can achieve a very good competitive environment without sacrificing network effects.
This was my second point. Thank you for listening.
Thank you, Yusuke.
Then how about Tatsuya? What is the state of competition law in Japan on mobile ecosystems?
Thank you very much, Takako-sensei. Let me introduce the situation on the perspective of the competition of Japan. As you may know, and Yusuke-sensei mentioned, in Japan, as in other countries, the fundamental layers, or indispensable layers, such as mobile devices, mobile OS, and the applications stores are subject to the oligopolistic by two players, such as Apple and Google. In this regard, recently the Japan Fair Trade Commission has been conducting a market survey on the mobile market and application store market in recent years.
In addition to this, this past September, the JFTC announced that they will be closing the investigation against the Apple once Apple rectifies its restriction on payment methods and revises, or updates, their guidelines on the review of application, which is that it is untransparent for app developers. Moreover, from this April, applications stores became subject to the new, digital platform regulations in Japan, which are called the Transparency Act. This is governed by the Ministry of Trade, Energy and Industry.
As a result of this, the designated application store operators, which means the Google and Apple, are required to ensure the transparency of the terms and conditions of the application stores, and need to provide sufficient, would need to provide a pre-notification when they prompt a change to their terms and conditions. By concerning these circumstances, we should also note that as a starting point, how the mobile ecosystem is designed can be determined at the discretion of each business operators. On the other hand, in light of the current competition situation in Japan, we should also note that, as a general matter, the design of mobile ecosystem could have a big impact on the biggest players in the ecosystem, as well as for general consumers. Thus, for Japan, it is now important to ensure that promoting competition between the ecosystems, and also promoting the competition on the platforms. That is my initial view on the situation.
Thank you very much.
Thank you, Tatsuya, for updating us on recent developments regarding the Japan situation. The JFTC is communicating with foreign competition authorities, and we are also interested in how- the view from other agencies and other countries.
Leni, if you could share us with your view from non-Japanese perspective, that would be great.
Thank you, Takako.
First of all, I would like to thank CPI for bringing to the table this very fundamental and timely topic on mobile ecosystems.
Let me just backtrack a bit and just give like the economic context for this one outside of Japan. Why it is especially important, especially in times of the pandemic. So, we have seen that in OECD countries, mobile data usage has increased by more than 15% on the average, and that mobile broadband subscriptions grew by 3.6% in 2020 across OECD countries, with the highest mobile internet penetration growth in Japan, with subscriptions of 185% per 100 inhabitants. Mobile ecosystems are particularly important as countries strive towards pandemic recovery, because, as we have seen in Europe, mobile technologies have generated a huge chunk of the GDP. It was 4.6% GDP for Europe, which equates to approximately 2.4 million jobs. And so, many international organizations, many think tanks have seen that mobile ecosystems will play a very big role when we invigorate our respective economies to build a better and more inclusive society.
Given this backdrop, we now look at the different developments in other countries, and I think it is a thing to say that there is a growing trend, a growing concern, that there, as Yusuke mentioned, there is a small number of major digital platforms which have become entrenched in a position of market power. We have seen this in the US where in a 2020 report by the US Antitrust Subcommittee mentioning the four largest digital platforms, Amazon, Apple, Facebook, and Google, they mentioned a few points, that number one, these platforms now serve as gatekeepers, having control over key channels of distributions. They have access to markets, and they can pick winners and losers throughout the economy.
This is also a concern in the EU, so as we can see in the EU’s explanatory memorandum for the proposed Digital Markets Act, it was mentioned that while there are 10,000 online platform providers in Europe’s digital economy, most of which are SMEs, a small number of large online platforms capture the biggest share of the overall value generated. This is evidenced by a number of cases which have been decided, or are being pursued at the regional and national levels in the EU. Perhaps one of the most well-known examples that we have is the Google Shopping case, which was most recently upheld by the General Court in the EU. The appeal of Google was rejected by the General Court, and now we understand for our listeners that this case involved Google self-preferencing, so it used its own search engine, which we know exceeded 90% market share in the EEA market, and it abused the dominant position on the market for online general search services in 13 countries in the EEA.
The allegation of the commission there was that it favored its own comparison shopping service over other comparison shopping services. And also very, very recently, it’s literally just hours ago, the Italian Competition Authority levied its highest fine against Amazon for allegedly abusing its market position when it found that the company unlawfully provided benefits to sellers on its online marketplace who have also signed up for its logistics service. Opposite of that is that it prevented its sellers who did not, who did not avail of the fulfillment by Amazon service from availing of the benefits given to Prime customers.
Also, it’s not only limited to the US and the EU, we also have several examples in Asia. In particular, we have in Korea, the Naver case, which involved the biggest online search engine in Korea, and KFTC found there that Naver abused its market dominance when it entered into contract clauses that prevented and penalized contract providers against providing information to rivals of its Naver real estate platform business.
With all these cases, there have been several policy developments across the world. And I will discuss this, probably in more detail, later, but maybe just to summarize the different approaches that have been taken. Some jurisdictions are opting to amend their competition laws on the argument that current laws are not sufficient to address these concerns in the mobile economy. Some would like to amend their merger laws, others are instituting or establishing digital market units to closely monitor mobile ecosystems, while others are preparing or proposing ex-ante regulatory options, like the EU, and the UK. Also being considered, and I know that this has been a discussion for Japan, is the development of a code of conduct as a possible solution for the issues identified in the mobile ecosystem.
Thank you, Takako.
Thank you, Leni, for sharing your view from various jurisdictions’ perspective.
Now, with those opening thoughts helping me to frame the discussion, I want to move to the first substantive question. The first question, I want to ask Yusuke and Leni, what do you think about cross-market competition that Yusuke just mentioned, for example between app platform and ads platform? I know that Yusuke is an expert in this area, and we would like you to provide your thoughts with us.
As I mentioned in my opening statement, I think considering cross-market platform competition can be a good way for the better implementation of good policymaking. Especially today, I would like to talk about the findings from my latest research work. In that work, I tried to explore the complex relationship about cross-market competition between app platforms and advertising platforms. In particular, in the app platform market, as you know, Apple and Google have been criticized to have a gatekeeper position, but I think they are not completely monopolists, because they are competing with another type of platforms, that is advertising intermediaries, or the so-called adtech companies.
These advertising intermediary platforms enable app developers to make revenue through in-app advertising instead of the sales of apps. Actually, over 90% of app developers rely on this business model. In other words, they are distributing their apps for free of charge, and they do not pay any commissions to app platforms such as Apple’s App Store and Google’s Play Store, so I think it is very important to look at the cross-market platform competition between app platforms and advertising platforms.
Actually, Apple and Google are now facing social pressures to reduce their commissions. This past year, they reduced their commission rate from 30% to 15% for some apps. In contrast, according to the report by UK government, which is called the CMA Report, at least 35% of the advertising value is deprived by adtech companies. You know, 35% in the advertising platform market, while 15% in the app platform market. They look unbalanced.
So, the advertising commission is now much higher than app commission, okay? These things may imply that recent social pressures on app platforms, such as App Store and Google Play Store, may have distorted the cross-market competition, the balance of cross-market competition in the current state of mobile ecosystem. If so, I think the situations may be going in a bad direction. This is my biggest concern about the current mobile ecosystem.
Thank you, that’s all.
Thank you, Yusuke, for explaining your economic perspective on competition between platforms.
Then, Leni, if you could share your thoughts on this view, that would be great.
Thank you, Takako and Yusuke, for the interesting point that you mentioned. It’s actually in line with recent studies of the OECD.
In this cross-country study, they have actually summarized a number of concerns involving cross-market competitions involving digital markets. Let me summarize some of these. We can count them into, number one would be self-preferencing, which is that platforms that sell ad inventory and act as intermediaries for publishers and advertisers have the incentive to favor their own sources. There are commentators who have argued that certain platforms in digital advertising supply chains have given preferential treatments to their own business units in respect to access to consumers and data.
The second concern pertains to leveraging. Commentators have raised concerns that vertically-integrated businesses that have market power in one part of the digital advertising supply chain could leverage that market power into other parts of the supply chain. Leveraging is more likely to be successful in situations where a platform with market power is able to increase the barriers to switching on various sides of the market.
Also, another point of concern with respect to cross-market competition is the collection of user data. There have been concerns, more specifically from the CMA, about certain platforms potentially abusing their market power to collect greater amounts of consumer data, which is a key input for targeted advertising, especially for digital display advertising. The CMA found that many consumers do not really understand what information they are sharing when they use the services.
This argument has been the hallmark of the Facebook case managed by the Bundeskartellamt of Germany, where the Bundeskartellamt found that users did not give meaningful consent with respect to the provision of its data to Facebook. I think these, in general, align with Yusuke’s study.
Thank you, Leni.
Leni just mentioned about the Facebook case, and it’s a specific case, so I was wondering if Tatsuya could share recent Japanese cases with regard to mobile ecosystem or ecosystems.
Thank you very much.
When it comes to the recent cases in digital platforms in Japan, as I mentioned, the Japan FTC conducted an investigation against Apple. And although the case concerns only the digital content related application sector, more music, video, and ebook applications, the promise made by Apple may contribute to improving the transparency on their application platform.
As I mentioned, the Transparency Act will also improve the transparency of the application stores as a whole in the future. This approach could be generally in line with international approaches, to some extent, as explained by Leni before, and may improve the competition situation on mobile ecosystems. However, I assume there will remain problems to be discussed in order to address or understand the monopolistic situation with regard to the mobile ecosystems.
This December, the JFTC announced that their investigation against Rakuten, which is a big e-commerce player in Japan, will be closed. In this case, it was alleged that Rakuten unilaterally changed the conditions of the shipping fees in order to request serious shipping fees for certain amount of delivery as free, and that this change constitutes as abuse of a superior bargaining position. On the other hand, Rakuten argued that their change in the conditions would optimize efficiency in their marketplace as a whole, and this could be important for their ability to compete with more of the bigger players, such as Amazon. But regardless of that, the case proceeded until now. This implies that even if application stores ensure transparency and seek to secure total optimization on the application stores, there will still remain in conflict with the protection of the smaller and mid-sized enterprises on their platforms.
In addition, the fact that application stores seek to compete with bigger players would not justify their behavior or conduct, and the priority could be put on the protection of the small and mid-sized companies under the current analytical framework of the Anti-Monopoly Act of Japan. So, I agree that we should focus on cross-market competition and need to conduct analysis and take into account for the assessment under the Anti-Monopoly Act as well. But, based on recent enforcement cases, that implies that the recent framework might not be sufficient, or needs to updated or modernize to some extent.
That is my view on recent situation in Japan.
Thank you, Tatsuya.
With regard to the Rakuten case you just mentioned, I think it’s an interesting case, and also difficult case. Rakuten wanted to make that plan to compete with others, others means Rakuten’s competitors, but that could have been, the JFTC thought, that could be abuse of a superior bargaining position with regard to Rakuten’s users and businesses. Yusuke, do you have view on this? Maybe I believe that economists can resolve anything.
Thank you, Takako-san for giving me this chance to talk about this topic. In my opinion, the current JFTC’s decision about Rakuten’s shipping fee policy has been made according to the abuse of a superior bargaining position, dominant position, of Rakuten over third party sellers. In other words, this decision was made only by the factors relating to the relationship between the platform and third party sellers. The consumer viewpoint has not been considered in this case.
I think there’s another way to consider consumer protection in other ways. But at the same time, I think it is very difficult to identify what conduct played by a platform is beneficial or detrimental to the consumer side as well as seller side. I have no concrete answer to this point, but I think this should be more considered over the world. Thank you.
Then we’ll move to the next question, and the next question will be mainly to Leni and Tatsuya, and this session is called Mobile Ecosystems: Competition, and Choice, and User Protection. So how can or should user protection be ensured? That’s next question to you, Leni.
Thank you, Takako.
On this point, we have seen, in various jurisdictions, that there are different types of policy approaches which are being explored to protect users of mobile ecosystems. They’re basically divided into three, and first is measures which try to address conflicts of interests between the different platforms, which may give rise to anti-competitive conduct. That’s the first.
Then the second is controlling potential anti-competitive conduct, including self-referencing and leveraging. Then the third is addressing market opacity. For the one, in terms of managing conflicts of interest, there have been different approaches, which involves, number one, a proposal to do structural separation between the different entities involved, and then under the CMA’s recommendation, there was a point to provide the specialized Digital Markets Unit to impose structural separation remedies on mobile ecosystems.
This is also seen on the side of the US where the US House of Representatives’ antitrust report also recommended to the US Congress to consider legislation to allow for structural separation between the lines of business to manage conflicts of interests between the larger digital platforms. Absent a full structural separation, there has been a proposal to suggest that it be managed through Chinese walls, China walls, with conduct and disclosure rules.
The third proposal under that is to implement structural remedies through the competition authorities. On the other hand, there has to be a second proposal, which is to protect against anti-competitive conduct, and this is what I mentioned earlier. There is a growing voice supporting ex ante regulations for mobile ecosystems, and perhaps the most known one in Europe is the proposal for the Digital Markets Act for the EU, where certain platforms, the big online platforms, they call it online intermediation services that are most prone to unfair practices. These would include the big four, so companies which are considered as gatekeepers, and you have to comply or meet a certain threshold and a certain effect in the market. If you are considered a gatekeeper, then you will have to follow certain ex ante standard prohibitions or obligations.
Number one, you need to allow interoperability, provide effective portability of data, and you have to inform the European Commission of any intended concentration involving other core platforms’ services providers.
On the other side is the UK, which has the established Digital Markets Unit and has these rules to identify companies with a strategic market status. These are companies which have a substantial entrenched market power, and if you are considered as an SMS, then you would be subject to a certain code of conduct. But the difference between the UK and the EU proposal is that in the UK, there’s a more tailor-fitted code of conduct, meaning they will fit it out for that specific company.
Similarly though, the SMS firms have the obligation to report all transactions to the CMA. And then lastly, as a way to protect consumer data, this has also been a huge discussion, and for this one, there has been a growing consensus that you need to mine or get synergies from data privacy protection laws, not only on competition laws.
I will discuss it later, but we have to also be careful as policy makers, that when we suggest or propose competition laws to control, or to foster competition in cross-market platforms, then we would also need to consider the implications on data and privacy there.
Lastly, maybe to just to wrap up that point, we need to assess the likely costs and benefits of these policy proposals.
Thank you, Leni, for sharing a comparative perspective. You mentioned ex ante regulations, and that’s also one of the topics that Japan is already considered and- considering how we could use in the future, and Tatsuya mentioned the Transparency Act.
So, Tatsuya, would you share your view on this?
Thank you very much.
As Takako-sensei and Leni mentioned, there could be many or various ways to protect users on mobile ecosystems, and that is a choice for each jurisdiction. On the other hand, when it comes to the promoting competition or innovation, it is important to ensure the predictability or legal certainty for the business players. In that sense, even if competition law or policy address the consumer or user protection issues, then that should be relied, or reflect the baseline, which is drawn by the other specialty acts such as Privacy Protection Act, or in Japan we have the Telecommunication Business Act, and they also protect communications-directed data, like the users’ privacy directly, or regulation.
Also, we also have the consumer protection act, such as the Consumer Comfort Act and misrepresentation acts [that are] relevant. These other regulatory regimes have been developed through extensive policy discussion based on the particular sort or examinations on user protection from a specific aspect or perspective. That’s why these regimes should provide a baseline for the enforcement or application of the Anti-Monopoly Act, and through this, the business operators can get insight, or predict the competition policy and revise their business model and conduct the self-assessment effectively and proactively. That is my view on this topic.
Thank you, Tatsuya.
Yusuke, do you have anything you would like to share with us with regard to user protection from an economic perspective?
Thank you. It’s a tough question for economists like me; economists do not usually consider user protection, instead, we consider welfare maximization, so I cannot answer this specific question, sorry.
That’s okay, that’s actually helpful.
Then, let’s move to the next question to Yusuke: what choices? Choice is also part of the name of this session, so what is choice and how should it be in mobile ecosystems from the perspective of competition law and policy?
Thank you. I am not a lawyer or a researcher of competition law, so let me talk about it as an economist. For better choice to be achieved, first of all, we need to understand the current, very complex landscape of mobile ecosystems. I see this is not an easy task. It’s very difficult. However, another thing we need to address is to make markets more transparent. This is a very important point. I think the lack of transparency is a very crucial problem in the advertising market. As you know, and as I had mentioned before, in the current situation, app commissions are 15% to 30%. In contrast, [an] advertising commission is at least 35%, which is much higher than app commissions. Nevertheless, over 90% of app developers rely on advertising revenue. Why?
This is a super question, why? I’m not sure why it is, but my guess is that this is because the advertising market is very opaque and not transparent.
According to a report by the European Commission, app developers do not know who paid, or how much, for their advertising space. This is a very bad situation. There’s no transparency in the current advertising market. In this situation, I don’t think app developers can make a better choice, a good choice in this situation. To resolve this problem, it is necessary to make advertising, especially mobile advertising markets, more transparent.
These is my thoughts on this topic. Thank you.
Thank you, Yusuke. You mentioned transparency is important, and as a Japanese lawyer, I expect that the Japanese transparency act would work well, and if it would resolve the issue in Japan, that would be great.
Then, Leni, if you could share your view on this.
Yes, thanks, Takako.
My view is closely related to what Yusuke just said on the issue of transparency. And what we now know as the cases are evolving, is that consumer choice is not mainly reliant on the price, or the quality, or any other factor affecting the product itself. But we now know that it’s impacted by other dynamics in the market. The questions that come to our mind when we analyze consumers having a choice is, number one, how informed consumers choices really are? This relates to transparency and information. Can consumers really exercise their choice, and if they do have the power to exercise that choice, how do they exercise it, and how can a restraint in the ecosystem affect their exercise of the choice? This is not to suggest that we are trying to replace efficiency standards in evaluating consumer choices, but it’s more of an input to when when we analyze that efficiency standard.
What I would really like to explore more in the jurisdictions is to have a more direct recognition of how certain practices within mobile ecosystems affect how consumers exercise their choices, particularly online, and if there are significant or artificial constraints on their ability to choose effectively, we need to analyze them more closely, because incumbents probably fear that competition would destroy this opacity, and so they would like to protect their business models at the expense of the consumers having more informed choices. It’s an issue that we have to tread carefully also in respect to crafting policies in different countries.
Thank you, Leni. Mobile ecosystems are very complex, and I think everybody agrees that competition is important, and competition should be secure. But how can competition be secure, and what is competition?
We touched upon competition between platforms and competition between platform users and the issues are complicated. Competition authorities, including the JFTC, are dealing with that. But competition law may not be, oh, it should be helpful, but it may not be the only tools that encourage competition, and today mentioned about ex ante regulations, and also transparency. Maybe these two, no, I should say three, but maybe two of the most important key terms, and the situation has been, and also will be, changing probably dramatically. I don’t have any specific view of how that will be, but I’m sure that will be changing dramatically, and I would like to thank you panelists for sharing your views.
At this point, I’ll ask each of the panelists for some closing thoughts. There are so many different things going on in the mobile ecosystems in Japan and around the world that may require us to be thinking more deeply about these issues. So for clothing remarks, may I ask Leni to share your view?
In relation to this growing international discussion on mobile ecosystems, maybe as part of my closing, I would say that there is indeed a growing voice with respect to closely examining mobile ecosystems, and now there is that question of whether existing regulatory approaches and tools that we have remain appropriate for this fastly evolving ecosystem.
One other point that I would like to mention is that, as you have said, this issue does not only involve competition, it impacts other policy spheres. We have privacy and data protection, we also have consumer protection to worry about. We didn’t discuss it, but it could also impact provision and remuneration of media content. The way that this issue will impact other policy areas, I think there is a need, we should recognize the need to involve other policy experts as well that are involved in privacy.
We do not have the monopoly of the knowledge in this area, and also one more important thing is that because mobile ecosystems are increasingly international, it would be very much a benefit to everyone to have an international cooperation when we are discussing policy options, just like what we are doing now.
Again, I would like to thank you and our colleagues here for this very fruitful discussion. I’ve learned a lot.
Thank you, Leni. I totally agree with you on everything, but especially the internal cooperation would be important for, especially for the digital area.
Okay, thank you.
As everyone knows, that even for now, the current competitive environment is very complex, and additionally, competition is dynamic, so nobody knows about the future of this complex landscape. But we economists and competition policy researchers have to do our best regarding this point. And actually now, tech companies have been expanding their business areas, so this movement will make the situation get more and more complicated. If so, it would be insufficient to look at individual markets for creating better policy making. We need to have a broader perspective over the mobile ecosystem, and, of course, other related product markets, but this is not an easy challenge. Further discussions are required all over the world, not only in Asia, Europe, and North America.
These are my concluding remarks. Thank you very much.
Thank you, Yusuke.
Tatsuya, would you please provide your closing remarks?
Thank you very much, Takako-sensei.
I would like to mention two points, and the first point is related to transparency. As we observed during this session, transparency has becoming the buzzword in the world of mobile ecosystems. Having said that, as I mentioned initially, ecosystem operators can design the ecosystem in itself, and it might have a big impact on our behavior. Even if there would be more transparency-promoting implementations or measures that will be coming, we should carefully review whether such measures really have the relevancy to promote or protect the transparency.
In other words, whether there is a hidden purpose behind the measures, such as supervising and things, something like that, as Leni mentioned, by referring to the Google Shopping cases.
Another point is, I really think, how the regulatory authority should tackle with these kinds of problem. As a jurisdiction, Japan also has developing a regulatory tool to address competition-related issues on the mobile ecosystem. But these tools are generally based on communication or cooperation between the big players, and not the hard enforcement approach like in the EU, by imposing high amounts of fine. While this is a historical trend in the regulatory regimes of Japan, it is still unclear if this approach can work well, not only for domestic companies, but also the foreign companies. If the Japanese authorities pursue this approach in the future, it is important to ensure transparency on their own side. They have to show reasonable and objective evidence, and plausible argument to the foreign companies that may share our concerns with foreign companies that may have a different culture or background.
That is my comment and closing remarks. Thank you very much.
Thank you, Tatsuya.
At this point I would like to thank all panelists for a fruitful discussion. I enjoyed this discussion, and let’s keep in touch offline as well, and also thank you, CPI, for providing this opportunity to have such a great chance to discuss a very hot topic.