Regulating ‘Platform Power’

By Orla Lynskey (London School of Economics)

Abstract:    Increasing regulatory and doctrinal attention has recently focused on the problem of ‘platform power’. Yet calls for regulation of online platforms fail to identify the problems such regulation would target, and as a result appear to lack merit. In this paper, two claims are advanced. First, that the concept of ‘platform power’ is both an under and over-inclusive regulatory target and, as such, should be replaced by the broader concept of a ‘digital gatekeeper’. Second, that existing legal mechanisms do not adequately reflect the power over information flows and individual behaviour that gatekeepers can exercise. In particular, this gatekeeper power can have implications for individual rights that competition law and economic regulation are not designed to capture. Moreover, the technological design, and complexity, of digital gatekeepers renders their operations impervious to scrutiny by individual users, thereby exacerbating these potential implications.