In this paper, we discuss the role competition law can play in safeguarding the democratic ideal. We do so against the background of the tech-driven decline of democracy that can be witnessed around the globe.
Democratic governance is anchored in the principle that power is vested in the people, and that people can choose wisely. Citizens must benefit from an undistorted flow of relevant information that allows them to exercise their autonomous choices as citizens and voters. Despite the many benefits that the digital era has brought to users, it has also opened the door to increased manipulation, misinformation, and distortions in the marketplace of ideas. Can competition law be part of the solution to these issues?
We begin our discussion with an illustration of the way in which the digital economy contributes to distortions in the marketplace of ideas. We look at the ways in which digital platforms have created power imbalances that distort competition, autonomy, and the market for ideas, and how the value chains underlying their business models easily lead to this outcome.
We then reflect on the positioning of the democratic ideal in relation to antitrust enforcement, noting two opposing endpoints of integration: the ‘competition dynamic’ approach that views democracy as a valuable incidental outcome of effective competition enforcement, and the ‘integrated’ approach, which argues for democracy to form an internal substantive benchmark of competition assessments. In between these two endpoints, we position a third model to which we refer as the ‘external benchmark’ approach to democratic antitrust. That approach imports relevant external benchmarks which could be used to assess harm to democracy, without directly changing the traditional intervention benchmarks. It is anchored in developments of European case law, and in particular the recent Court of Justice judgment in Meta Platforms v Bundeskartellamt (2023). We elaborate on this model, its application and usefulness.
With the year 2024 being an important election year throughout the world, the ‘external benchmark’ approach may offer a path through which competition law could rise to the challenge and protect the marketplace of ideas in 2024 and beyond.