December 9, 2021

This discussion addresses whether there is a departure from existing principles in the assessment of so-called “self preferencing” compared to more classic theories of harm recognized under antitrust law. Many economists are of the view that self-preferencing is not necessarily anticompetitive, and may generate efficiencies. That said, recent regulation of tech companies has relied on this concept, and it has survived judicial scrutiny. To what extent should efficiencies merit consideration when looking at self-preferencing in the context of large technology companies? The panel addresses this question in a detailed exchange.

The discussion also explores whether there is a difference between self-preferencing in the digital sector and self-preferencing in non-digital markets? Is self-preferencing as a legal category of practice(s) easily definable? If so, how should it be delineated for competition law purposes?

Finally, the panel explores the plans in a number of jurisdictions to deal with self-preferencing of services by large digital platforms through ex-ante regulation. The debate continues over the pros and cons of ex-ante regulation versus classic competition law enforcement. A key question is to ask what factors should be taken into consideration by aregulator before prohibiting self-preferencing by large digital platforms?