Lockdown pushed even more of us online. The ever-increasing importance of technology means that ensuring that these markets function and evolve competitively is the top priority for many competition authorities.

The concerns are not new: authorities were already worried that markets will tip and that existing platforms will use acquisition strategies to kill emerging competition before it can gain a foothold. But the potential scale of the consumer harm is larger than ever before. And the traditional focus on assessing short-term price effects has limits when so many digital services are offered for free.

For its part, the European Commission’s top priority is to inject fairness and market access into the digital economy. Beyond enforcement against Big Tech and a Sector Inquiry into the Internet of Things, it has proposed new regulatory and competition powers:

• a New Digital Services Act to stop platforms misusing their position as both the platform owner and a competitor (self-preferencing) and imposing data portability requirements (interoperability);
• a new competition tool to carry out market investigations and impose market-wide remedies to tackle structural problems like gatekeeper-platforms using their power to drive out competitors; and
• new regulations or guidance to ensure that competition rules do not prevent self-employed workers, especially in the gig economy, to collectively bargain with their platform employers.

Similarly, the UK’s Competition and Markets Authority has proposed regulating the behaviour of digital platforms. A new Digital Markets Unit would enforce a code of conduct governing platforms with “strategic market power” and impose a range of remedies including data-related interventions, enhanced consumer choice, ending default settings, and the separation of platforms.

The US Federal Trade Commission is holding a series of hearings into how antitrust law can adapt to the digital economy, while the House judiciary antitrust subcommittee is investigating online platforms and market power. The FTC has also announced that it is investigating past acquisitions by GAFAM, focusing on how deals were reported, and whether they made anti-competitive acquisitions of potential competitors that fell below the merger filing thresholds.

The German Federal Court of Justice has found that Facebook is abusing its dominant position by not providing users with a choice over its use of data generated outside of Facebook. And ongoing German competition law reforms will further tighten the rules for large digital platforms – barring them from self-preferencing or pooling data from multiple sources.

China is also increasing its scrutiny of tech platforms. Following an online meeting in which SAMR raised concerns over unfair competition and abuses of dominance in the digital space, China's biggest players (including Alibaba, Tencent and Baidu) signed a high-level pledge to compete fairly. And SAMR is reportedly preparing an investigation into alleged abuses of dominance by the most widely used mobile payment platforms (including WeChat Pay and Alipay) following a complaint by the People’s Bank of China (China’s central bank).

And the Australian competition agency continues to investigate tech platforms with a “wider lens”, bringing together competition, consumer law, privacy and media content policy. It has recommended a new prohibition against “unfair trading practices”.

Beyond assessing price vs. non-price effects, the traditional notion of consumer welfare focuses on short-term benefits for direct consumers of specific products.

We’ve discussed previously the need to acknowledge wider benefits to society as a whole when companies work together on genuine sustainability projects. We expect to see progress here following the Dutch authority’s significant first step (endorsed by the EC) in providing clarity that it intends to consider these wider benefits when assessing sustainability agreements.

And a Biden win in the US presidential elections will mean similar trends in the US as progressive politicians increasingly press merger control policy as a tool to ameliorate inequality, for example by looking at effects of a merger on employment, impacts on small businesses, and incentives for long-term investment, including for innovation.

Even where consumer harm can be felt via short-term price effects, the health crisis has shown that we can’t always use existing competition tools to solve the problem. Price hikes on essential items like face masks and hand sanitisers have been a major theme of lockdown. Tackling them under competition laws can be difficult since most regimes only allow intervention against unilateral conduct when a dominant firm “abuses” its market power by charging “excessive” prices.

Despite the CMA’s pro-activity (setting up a taskforce to gather evidence of harmful commercial practices and investigating several pharmacies and convenience stores), it has advised the UK Government on the need for “emergency time-limited” legislation to properly tackle excessive pricing.

South Africa has done just this, with 25 excessive pricing investigations brought under both existing competition law and new consumer protection regulations which prohibit charging prices above a certain threshold linked to a product’s cost of production and the seller’s margins pre-crisis. Meanwhile France has capped prices of sanitising gels and US Attorneys General have expressed their determination to prevent price gouging of essential products.

China’s SAMR already has the existing Price Law at its disposal, which prohibits price gouging even without collusion or dominance. It has published guidelines to ramp up enforcement concerning supplies essential to preventing infection.

As lockdown measures ease and consumers venture out again, ensuring that competition law and enforcement protects them against exploitative practices will doubtless stay a top priority. And let’s not forget that there are some major pre-Crisis excessive pricing investigations still ongoing in the EU.

The evolving definition of consumer welfare will lead to increasingly political and socially focused enforcement priorities and outcomes. It will be vital for companies to stay on top of fast-moving developments. They should:

• expect increased scrutiny of their activities in all spheres – including those not traditionally regarded as relevant to competition law;
• engage early with competition agencies and wider interest groups; and
• be ready to present well-evidenced efficiency rationales for strategic business decisions and deals, including in respect of non-price factors such as environmental and innovation benefits.