Competition and platforms regulation: Case study on interoperability of social networks

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Context

Regarding issues raised by the digital economy, many discussions are ongoing at national and international level to regulate large online platforms. In this context, several regulatory tools are discussed: one of them is the interoperability of services, sometimes presented as a miracle solution to the competitive issues raised by major online platforms. However, it is necessary to determine in which market(s) it should be implemented and what its objectives would be. In this regard, the Council aimed to highlight its potential benefits and risks in the sector of social networks:

  • the objectives of the interoperability of social networks (1);
  • the scope of the platforms and functionalities to be subject to interoperability (2);
  • the challenges of interoperability for social networks and their users (3);
  • the legal bases of an interoperability obligation (4).

Recommendations

The Council identified three step-by-step options for interoperability between social networks - not exclusive of each other :

  • 1) Social graph interoperability, which would allow the user to maintain the relationships acquired on the previous social network when joining a new one;
  • 2) Instant messaging interoperability, which would enable the user on network A to send or receive messages from a user on network B;
  • 3) Content interoperability, which would allow the user to view (option 3.1), publish (option 3.2) or even interact with content (option 3.3) on a third party social network.

In positive law, the regulator has several potential legal bases for ensuring the interoperability of social networks, such as electronic communications law or competition law. Plus, the notion of the right to interoperability tends to emerge through copyright and consumer law. However, the limits of existing rules for dealing with the issue raise questions about the relevance of a new form of regulation.

First of all, a cautious approach is suggested by the Council. Indeed, regarding the risks raised in the impact assessment, it would be preferable to first examine the effects of the implementation of the right to data portability, allowing users to transfer their data from one social network to another.

  • Following this examination, if the Government wished to introduce a requirement for interoperability, this initiative should be part of a more global reform of the regulation of platforms that would integrate economic and societal aspects, at the European level (Digital Markets Act).
  • Asymmetric and ex-ante regulation could thus specifically target systemic platforms, including in their relations with consumers, as a complement to the P2B Regulation, which would continue to apply to all platforms in their relations with user undertakings. Where appropriate, interoperability could be recognised as a consumer right, insofar as it meets the needs of consumers to control their data and have their digital tools communicated.

Then, on the implementation of regulation, the Council recommends the application of the principles of necessity and proportionality in several respects.

  • The scope of the interoperability obligation should be strictly limited to systemic social networks, defined both by quantitative criteria (market share, number of users, etc.) and qualitative criteria such as the possession of essential data or the impact on users' cognitive systems.
  • The degree of the obligation of interoperability should be minimal, taking into account the potential negative impacts on social networks on the one hand and on users on the other hand, such as the risk for privacy. Thus, a step-by-step approach should be favoured (option 2: instant messaging interoperability or option 3.1 content consultation interoperability).
  • The format of the interoperability obligation should be part of a general framework, leaving flexibility to national regulators as well as agreements between platforms, such as for the telecommunications model. The choice of competent regulator could vary according to the interoperability objectives and options: competition authority, electronic communications authority (especially for option 2), or audiovisual communications authority (especially for option 3.1).

Methodology

In addition to an analysis of the existing scientific literature, the Council conducted fifteen hearings with scientists, legal experts, members of the administration and independent administrative authorities, as well as various social networks, in order to better understand the issues and challenges of interoperability. It also based on the citizen consultation on economic and competitive regulation which was organized as part of the "Etats Généraux du Numérique" in 2019.

 

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