Does the dominance of platforms call for a regulation ?

Dinner organised by Concurrences Review with keynote speakers Sébastien Soriano (President, ARCEP) Paula Forteza (MP, Assemblée Nationale) and Jean Lessi (Deputy Director, CNIL) in partnership with Fréget Tasso de Panafieu.

Olivier Fréget

The debate on the regulation of dominant platforms is not strictly economic, but also concerns the autonomy of citizens and control by public institutions. Several central questions need to be raised. Is there a risk of control over citizens? On the contrary, does the digital transformation offer the possibility of renewed control by citizens? Is there a need to create ownership over personal data? These controls are varied: they may be citizens’ control over institutions, their own data and their digital identity, or the State’s control over the information circulated (true or false) and over economic operators.

Sebastian Soriano

The Internet is a prodigious hotbed of innovation and progress, particularly because of its decentralized and horizontal architecture. But the architecture of the Internet is seriously threatened by feudal strategies in which major players are trying to lock us into their ecosystems. These splinter strategies challenge the very nature of the Internet as a common good and at the same time our free will.

Fortunately, Europe has anticipated some of these threats by adopting a regulation on net neutrality (dealing with networks) and another on personal data protection (dealing with control and consent). But we need to prepare for the next battle: that of the rise of devices.

Today, we are losing control because we think we have a choice, because we choose the gateway (the device). But in reality, we are in a tunnel with predetermined exits.

This is primarily due to a series of restrictions implemented by operating systems, application stores and device manufacturers that prevent free and equal access to the Internet. Soon, the voice assistant will make life so comfortable that we will let them choose in our home. This is the Faustian pact we are making. So how do we regain control without hindering innovation?

Since we will always need a device to connect to the Internet, we think we should start our thinking with terminals. And regulation may have a role to play in helping us get back on track.

A first proposal, presented in a report published by Arcep in February, consists of extending the principles of open internet to terminals, i.e. subjecting terminals, OS, app stores, to the right of users to access and contribute freely and without discrimination to digital networks and services.

Then, a series of measures could aim at bringing more fluidity to the market (e.g. allowing multiple search engines, allowing users to uninstall pre-installed applications, providing full portability of all data, giving non-discriminatory access to phone APIs, etc.). Another proposal is also to create a dispute settlement procedure that would provide effective solutions within a short period of time to disputes between platforms and developers, for example.

Finally, regulators should act as "architects of choice" (C. Sunstein and R. Thaler, Nudge). As a regulator, we need to use the power of information to steer the market in the right direction and create an architecture of choice for the citizen. The goal is to enable them to make informed choices and to help regulators develop their knowledge of the market. In this way, we will be able to achieve, through the use of the multitude, the goals we have collectively set ourselves.

To do so, it is important that regulators are able to collect the most relevant information in order to make it accessible to the public and to develop, together with ecosystem and crowdsourcing actors, applications that guide end-users in their informed choices.

Paula Forteza

Open Data can be a tool for citizen control through transparency but also a tool that creates public initiatives and enriches public action (start-ups).

In the context of public policy, it is easy to define that data paid for by the taxpayer must be open or that decisions made by algorithms must be transparent. However, this is not so clear in the case of the Internet giants. The current debate is about how to regain democratic control over these large platforms that dictate part of our daily lives.

Control can come from the regulators, but it can and must also come from society, from citizens. Users can give a new shape to digital markets if they are given the right tools. The RGDP is a first step in this direction by requiring consent, which remains to be defined, the right to portability and new rights of recourse (such as class action).

With regard to the question on asymmetric regulation, citizens should be able to distinguish between different market players. Regulators must intervene upstream, providing them with the tools for users to regulate.

The acceptance of bundling is also a citizenship issue. Despite the effort to comply with the RGDP, Facebook still does not ask for its users’ consent to the use of their personal data by other subsidiaries (Whatsapp, Instagram). This gives them a real competitive advantage.

As regards the law on fake news, the aspect I find most interesting is that of transparency. Algorithms play a big role and have a big responsibility in highlighting a certain type of content that is less verified and of lower quality. We would like to obtain aggregated statistics to know the outputs of these algorithms, which would allow third parties to make analyses and to be able to identify the share of responsibility of the algorithms.

Opening up the data and providing the tools necessary for citizens to make informed decisions are the keystones of the change of scenario in the digital world. The ultimate goal is regulation by society.

The government is very active. The national assembly is working on the constitutional review. As part of the latter, a working group has been set up to create a digital charter, like the charter on the environment. It will include digital rights and freedoms and will be the result of a political agreement between senators and deputies.

Photos © Léo-Paul Ridet

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  • National Institute of Geographic and Forest Information (Saint-Mandé)
  • Fréget Glaser & Associés (Paris)
  • French National Assembly (Paris)
  • CNIL (Paris)