On rights and competition



13 October 2014

The Internet represents the immaterial dimension of existence, which complements and acts in continuity with the material dimension rather than being an alternative to it. Immaterial relationships are mediated by the on-line platforms that have developed rapidly and with little control largely because the European e-Commerce Directive of 2000 exempted them from liability.

On-line platforms are now determining factors in the use of the Internet, and become not only the principal means of interacting with the immaterial dimension, but also the most important interfaces for the material dimension. However, they are not neutral: as a matter of fact, the ways in which on-line platforms are conceived and user experiences are shaped are capable of orienting and modifying user behaviours. And that is not all because the platforms are designed to produce the effects of lock-in (which make it very difficult for users to abandon an adopted service) and the absence of interoperability, as the laws governing intellectual property rights are used to assure their closure in various ways.

The widely deregulated and rapid immaterial dimension is often characterised by increasing returns that tend to give rise to global monopolies and oligopolies which, in a few years, have created (and are still creating) positions of dominance in intermediating the services of the material dimension without any of the guarantees or restrictions foreseen for their predecessors. They are replacing local intermediaries operating in the material dimension with multinational intermediaries operating in the immaterial dimension: in other words, allowing the presence of gatekeepers in the immaterial dimension is leading to a loss of governance of a large part of the material dimension.

In order to defend the market (and, with it, public rights), the present gatekeepers should be subject to specific pro-competitive regulation and the entry of the new gatekeepers wanted by those (who would like to eliminate the neutrality the Internet) should be prevented. It is therefore to be hoped that ex ante provisions are introduced in order to protect the rights of consumers and economic operators who are currently only protected ex post. Europe, in its dimension as a market of consumers, should decide whether to accept the status quo or intervene in order to ensure a different future.