1. ANALYSIS
   The starting point is the unprecedented and persistent concentration of power on the Internet around a handful of companies which, from one pioneering innovation, have built apparently endlessly expanding empires. A core dynamic at work here are especially powerful “network effects”. They fuel a momentum of attraction and accumulation that procures such massive competitive advantages that the very mechanisms of the market’s “invisible hand” and “creative destruction” are being seriously threatened.
   
2. STAKES
   To unlock this stranglehold, the four avenues being proposed draw inspiration from existing regulation for governing infrastructures, particularly from telecoms where the network effects issue is well-known, and from the financial industry. The first to be subject to a regime of preventative, bespoke and adaptive obligations would be the Big Tech companies identified as having a special stature in the marketplace.
   
3. SOLUTION
   We have identified French and foreign subject-matters experts to write contributions in order to discuss the four proposals made by Sébastien Soriano.
   

1st proposal: TOUGHER ANTITRUST RULES FOR BIG TECHs
Barry Lynn, founder ot the American think-tank Open Markets Institute, takes an interest in the negative influence of Big Techs monopolies over democracy, and the existing capacities – such as dismantling – to act in the face of this situation.

2nd proposal: DEVICE NEUTRALITY
Stefano Quintarelli, former member of the Italian Chamber of Deputies, takes an educational approach explaining why the network neutrality concept should be broadened to device.

3rd proposal: DATA AS A COMMON GOOD
Judith Rochfeld, Professor of Private Law at the Sorbonne Law School (University Paris 1, Pantheon-Sorbonne), takes an interest in assumptions regarding data sharing and proposes two distinct approaches:
– Consider data as essential infrastructures
– Set up a neutral server managed by an independent third party

4th proposal: API-DRIVEN REGULATION
Mehdi Medjaoui, entrepreneur and founder of APIdays international conferences, proposes two solutions to leverage the power of Big Techs’ API:
– The concept of API neutrality
– The right to be represented by an individual API

FINDINGS

In 2000, the internet was still a new emerging technology, promising more freedom of expression and access to new markets. While it lived up greatly to those expectations, new challenges also emerged. At that time, no one could have suspected the pivotal role that platforms, smartphones and their pre-installed app stores as well as social networks would come to play in the economy and in the public debate. The e-commerce Directive was therefore not designed to apply to these players. Nor could anyone have anticipated that some of these players would acquire a dominant position and leverage it to foreclose effective competition.

It is in this context that the e-commerce Directive has relied on two major pillars. On the one hand, it has exempted digital service providers from any liability for the content they disseminate. On the other, it established a country of origin principle. The latter is tantamount to unconditionally delegating all regulatory powers to the EU Member State in which the service provider’s head office or principal establishment is located. While this regime has served its purpose by facilitating the development of SMEs, it has also deprived Member States of strategic sovereign powers and, in the light of changing circumstances, has resulted in granting a selective advantage to the Big tech. For the internet to keep fulfilling all its promises, it is henceforth necessary to offer a safe harbour to start-ups. As effective and vigilant competition law enforcement may be, it does not suffice all and in itself to restore the countervailing power of consumers and user companies to Big tech. It must be supplemented by an ex ante European regulation, which allows to act before any damage are done and not only after it has started to materialise, with possible protracting effects.

RECOMMENDATIONS

• Unless an agreement is reached on the basis of the proposal for a Regulation on preventing the dissemination of terrorist content on line, which could serve as a model EU law, to allow Member States to set up a duty of care, including proactive measures, toward hate speech and online disinformation strategies in times of elections, within the framework of common EU Guidelines;
• To no longer apply the country of origin principle to the Big tech;
• To empower consumers with full freedom of choice, based on content portability through an interface programming application and on the extension of the net neutrality principle to all devices (smartphones, appstores);
• To include digital presence (collection and use of data, in particular for advertising purposes) within the criteria for merger control notification, which are currently based only on turnover thresholds;
• To empower business users, by prohibiting certain practices or clauses imposed by the Big tech which have the object or effect of restricting their capacity to switch platforms or their freedom to set quantities or prices;
• To target this ex-ante economic regulation on the players which meet the GAFA tax criteria or dominance criteria and empower authorities that have already demonstrated their independence from any national interest and expertise to implement it, without creating a new European body.

A one direction power balance is at the heart of the digital economy. Through proprietary mobile operating system (OS), Big Tech companies lock consumers and user companies in their ecosystems and secure their monopolistic positions thanks to strong network effects.

The instant mobile payment market is a good illustration of this, with the presence of gatekeepers who, by abusing their dominant position in mobile OS, end up destroying all forms of French or European competition.

Solutions preventing this phenomenon should be supported by the legislature, in order to offer an equal access and an unbiased choice for consumers.

ANALYSIS
Big tech companies were the first to get involved and interested in the potential of data portability via a vast network of access to personal data. In June 2018, Google, Facebook, Microsoft, Apple and Twitter launched the Data Transfer Project (DTP) to define their own technology standard for cross-platform data portability. They aim to shape the way personal data flows between all types of services, platforms or not.

STAKES
Big Tech gives its own technological interpretation of the GDPR: this model is not human-centric as platforms define the sharing rules themselves. For example, citizens/users will not have an independent dashboard from the online services processing their data to manage their consents; data flow control will be done from Google and Facebook, to mention just a few.

A PLATFORM-CENTRIC MODEL OR A HUMAN-CENTRIC ONE? [1]

PROPOSAL
Solicitous about the humanistic character of this new infrastructure, we propose a principle of governance that has been tried-and-tested: the principle of separation of powers. Each individual must have the opportunity to represent their wishes and interests independently with regard to the use of their data. Therefore, individuals cannot depend on a particular service for the management of their data; this would be tantamount to encouraging a platform-centric data economy.

We wish to harmonize, support and legitimize the creation of standards (legal, technical, economic, design) for this new infrastructure for the free flow of personal data centered on the individual. Currently, in order to define them as close as possible to the uses, we conduct data flow projects in various sectors such as mobility or employment. The main issue is not technical but rather political: the very first challenge to take up is that of governance.

[1] MyData – A Nordic Model for human-centered personal data management and processing, by Antti Poikola, Kai Kuikkaniemi, Harri Honko