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37 World Competition 149 (2014)
Social Media & Competition Law

handle is hein.kluwer/wcl0059 and id is 157 raw text is: Social Media & Competition Law

Aleksandra GEBICKA & Andreas HEINEMANN*
Virtually all of the important IT companies have been under scrutiny from the competition
authorities, often on a worldwide basis. However, this is not yet true for the main actors in the
field of social media. This article explores the competition law concerns of this sector focusing on
the most popular platform, i.e., Facebook, and its potential abuses of dominant position under
Article 102 TFEU In the world of social media markets, market definition is complicated
because of the two-sided nature of the platforms. Hence, a new version of the SSNIP test is
proposed here which rejects the application of a price-based test to free Internet services and
re-evaluates the importance of quality as opposed to price. Network effects and other barriers to
entry are traditionally discussed for the establishment of dominance. Prohibited behaviour may be
either exploitative or exclusionary. Potential exploitative conduct is reviewed from the perspective
of private social media users, which highlights the controversial attitude of Facebook towards
changes in administration and design by the platform, protection of information and deletion of
profiles. Past IT-related case law is still relevant for the identification of exclusionary behaviour,
especially as regards the rules on tying, bundling and leveraging. Developing data protection law
influences restrictions on data portability. Overall, the hopeful conclusion tends to be that
competition law misgivings could be allayed by a suitable adaptation of the general regulatory
framework to avoid abuse in this rapidly growing area.
1 DEVELOPMENTS IN IT COMPETITION LAW
1.1   STARTING POINT: THE NOTORIOUS IT CASES
It is no coincidence that the IT sector has produced some of the most important
competition law cases worldwide. The particular competition law exposure of this
industry is due to its economic features: the considerable increase in efficiency is
not simply due to new technologies, but also to direct and indirect network effects
triggering a tendency towards natural monopolies. This inclination is strengthened
by high economies of scale and scope, and the need for standardization creating
more advantages, path dependency and lock-in. Against this backdrop, competition
law control is inescapable, although its national or regional character is not always
easy to reconcile with the international orientation of the related companies. Thus,
Aleksandra Gebicka, LLB with European Legal Studies at King's College London and University of
Zurich. E-mail: aleksandra.gebicka@kcl.ac.uk. Andreas Heinemann, Professor of Commercial,
Economic and European Law at the University of Zurich. E-mail: andreas.heinemann@rwi.uzh.ch.
Gebicka, Aleksandra & Heinemann, Andreas. 'Social Media & Competition Law'. World Competition 37,
no. 2 (2014): 149-172.
© 2014 Kluwer Law International BV, The Netherlands

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