[Invest&Law] "Online Platform Regulation, Bipartisan Agreement in the US"

Jin Burus App Fairness Alliance Global Policy Advisor

"At this point in time when a new online platform called artificial intelligence (AI) is emerging, the speed of online platform regulation and international cooperation are most important. Without appropriate laws, there is a high possibility that monopoly patterns created by existing laws will be repeated. Therefore, it is essential to ensure that competition and innovation are maintained."

Gene Burrus, Global Policy Advisor at the App Fairness Alliance, said this in an interview with Law Times on the 19th. He added, "When dealing with anti-competitive behavior of dominant online platforms, existing competition laws are slow and uncertain, limiting their ability to curb such behavior," and "Preemptive regulation of dominant platforms is being pursued worldwide."

Advisor Burrus attended the 2nd Law Times Hero Issue Forum on the 19th and gave a presentation titled "Digital Platform Regulation Laws, Overseas Legislative Trends, and Implications for Korea." As an antitrust and competition law expert, he is the founder of Burrus Competition Strategies in 2023 and previously served as Deputy General Counsel at Microsoft (MS) for 15 years. He later worked as an antitrust lawyer for American Airlines, oversaw global competition policy at Spotify, and served as an external advisor to McKinsey.

Below is a Q&A.

- You have held various roles such as Deputy General Counsel at MS and Global Competition Policy Supervisor at Spotify. What are the major achievements in the field of antitrust and competition recovery?

◆ During my time at MS, I consider the process of developing and implementing policies targeting Google in the EU and the US as the most significant achievement. The discoveries and lessons learned at MS could be generally applied to other major online platforms. Later at Spotify, I focused on addressing issues caused by Apple's dominant mobile platform on competition and the market. I emphasized the need for new laws to regulate swiftly and decisively to curb such behavior. These efforts led to successful legislation such as the EU's Digital Markets Act (DMA), the UK's Digital Markets, Competition and Consumers Act (DMCC), and the US's Open App Markets Act (OAMA). I hope these experiences will help establish effective laws in Korea as well.

- There are concerns that big tech companies headquartered overseas make regulatory enforcement difficult, potentially causing reverse discrimination against domestic platforms.

◆ It is important to limit the law’s application only to companies with genuine gatekeeper power that can restrict or hinder competition. Only a few companies possess gatekeeper power, most of which are global companies headquartered in the US. Even if one country struggles to handle the actions of large overseas companies, if multiple countries enact similar laws, international cooperation will make regulatory enforcement and innovation promotion easier.

- You emphasized that the Korea Fair Trade Commission (KFTC) should take faster and more efficient measures to control market dominance. What specific roles and strategies are needed for the KFTC?

◆ Anti-competitive behavior by online platforms is difficult to address with traditional competition law enforcement methods. Several countries have already introduced preemptive regulations. The mobile platform market is in a situation similar to when Microsoft monopolized PC internet access in the past. Just as antitrust regulations then limited Microsoft’s power and paved the way for companies like Google and Apple to grow, clear regulations are needed for current platforms. The EU’s DMA, the UK’s DMCC, and the US’s OAMA are all representative examples of preemptive regulation. If Korea introduces similar regulations, it can avoid lengthy litigation processes and provide certainty to the market. Especially now, with new online platforms like AI rapidly emerging, it is essential to strengthen international cooperation based on speed and certainty.

- There are concerns that the strengthened "America First" policy after Trump’s election might conflict with Korea’s platform laws.

◆ Issues of platform dominance and abuse are bipartisan matters in the US. Both the Biden and Trump administrations recognize the need to limit the market power of these platforms and do not equate this with solely American interests. Therefore, Korea’s platform laws will not conflict with US policies but rather contribute to achieving shared goals of protecting consumers and businesses in both countries.

- Recently, the Korean government announced a 'post-estimation system' that allows imposing fines on platform companies through amendments to the Fair Trade Act. What concerns should be noted?

◆ Two important elements of the post-estimation system are provisional measures and fines with sufficient deterrent effect. Provisional measures will create an environment where affected companies can continue their business stably without waiting for long litigation processes. Also, the level of fines determines the deterrent effect. Since anti-competitive behavior by dominant platform companies is generally highly profitable, if fines are not set appropriately, companies are likely to ignore legal requirements. The Korean government must ensure that fines effectively deter intentional non-compliance. In particular, fines should be strong enough to threaten the profitability of companies. This will encourage companies to comply with fair competition rules.

Kim Ji-hyun, Law Times Reporter

※This article is based on content supplied by Law Times.