Ensuring Digital Signature Lawfulness for Interview Non-Disclosure in European Union

How to eSign a document: digital signature lawfulness for Interview Non-Disclosure in European Union

and i am joined today by marta schneider competition and consumer protection lawyer with academic interests focused on european union law she's a phd candidate and she has experience for example in working in the center for anti-trust and regulatory studies university of warsaw welcome hi thanks for having me um the 21st century is one of digital globalization new technologies emerge but at the same time corporate giants such as facebook face serious privacy bridge allegations a few weeks ago elon musk known as an eccentric owner of tesla and spacex announced that he bought twitter probably the most important platform in the world in terms of um international political conversations these are some strange times so if you had to describe our digital era in a few words what would they be oh a few words might be a challenge to describe them for sure um firstly maybe i can say that i can look at these issues from the my my background and perspective being a lawyer especially interested in eu regulatory and competition issues which are indeed very relevant if you try to regulate these issues um issues being indeed but there are a few massive platforms who have great power that they accumulated due to for sure their great business models but also to the to the way in which the digital markets function with the network effects uh which means that the more users join the platform the more pop users want to join the platform the bigger and stronger the platform gets um multi-sided and yeah multi-sided aspects of these platforms or their mainly as basing their business models on the advertisers on the other side of the platforms and then users thinking that they're actually using them for free as they're often claiming to be well actually and there's a lot of data that the platforms are usually um extracting and then commodifying for the advertisers to uh well to pay for them being there um so the these few uh massive platforms often have so much power that they can be called the gatekeepers of um entering this digital environment as it's very difficult for competitors to set up their businesses and to grow to this extent that they could actually uh compete with well google amazon facebook whatever it may be and then um the consumers don't even often realize that there's a bunch of threats to their privacy to their data protection to their consumer rights when they're interacting with these platforms and then this harm can not always be seen so directly um because of the structures of these this environment so there's for sure a lot of uh legal issues that um these business models have um control or created um and the the funny thing is that these enviro this environment is developing much faster than the legal framework so when we are stuck on discussing one issue let's say data protection and on offline or even maybe somewhat online and there's 20 different new challenges that have have been created in the meantime that we only see later on so it's very difficult to regulate these fast-growing um environment and to also see uh forward what what the challenges to be regulated can be um and yes indeed uh the example that you were up with twitter and it's a very interesting case um as on one hand um it can be scary to to think that the most the richest man in the world who already has a very a lot of uh voice on the platform and who has a lot of followers and both fans and an adversaries is now buying the platform and he has very strong views on what free speed should mean and um what this platform should be about and but at the same time there's already those challenges of what can we really do about this uh surely he should modify this transaction to relevant competition authorities as as one does with transactions of these the scale but at the same time because his businesses are not really uh related to uh media or online platforms or these sort of markets the current framework that we have in competition law and regulation not only in europe but generally worldwide and it may be very difficult to to be able to do anything so so well um the risks to to him perhaps changing the way the platform functions and then the users not being able to use it the same way they have um are there and this this actually yeah demonstrates how this transaction or potential transaction because i'm not sure if it's uh happening in the end or not because he's changing his mind but demonstrates the other risks of um what can happen with our data uh with the yeah media environments that are also very interesting uh when it comes to your algorithms and the ai that is being present how it regulates uh free speech and how that refers to the basic democratic concepts of media freedom media pluralism and such so this definitely wasn't a few words but i hope it somehow draws that picture for talk today yeah that's great yeah and surely the twitter topic is an open one for the future um but tell me that because the main topic of our discussion is the occurrence of new digital technologies and their impact on the eu's competition policy so i think i should ask now um what is competition policy and why is it so important for the european union to have one right um that's a very good question to start indeed uh so competition law is generally [Music] we can generally define it as a way of regulating the market um occurrence so as a general rule we have freedom to freedom of um establishment and free market when one can set up a business that business can grow the business can merge with another business um but there are certain things that this business cannot do because it would harm the competition which is generally a good thing because the more competition we have i theoretically and the better prices the better output the better quality there is for consumers so we have this competition policy um so that consumers get um yeah for them so called consumer welfare which is defined by low prices high quality products innovation and and so on so within competition law we can talk about different ways of um different behaviors that are regulated in certain ways and there are things that main two main things that businesses cannot do one of them is the anti-competitive agreements such as for example cartels which which is to say that companies cannot for example agree on prices that they're going to sell their products to distributors or consumers and because well again this would limit the competition and negatively impact other businesses which could fall and then the monopolies could grow and consumers would not have a lot of choice in good prices and the second type of behavior we regulate in competition law is abuse of dominance which is um a situation where one company grows to a significant extent has a lot of market power uh enough market power that it can act independently from other market players i can for example raise prices or lower prices without really being affected by the market because it's so powerful and while this um position of dominance is not necessarily bad uh what is bad is to abuse it so use this position in a way that for example exploits um competitors or in the end negatively affects consumers and then the third type of behaviors that we regulate is merger control so a situation where we have uh businesses that are emerging or um when one business takes over another business this is something that and before it happens it needs to be notified if it reaches certain thresholds of scale it needs to be notified to competition authorities which then review whether this transaction can happen without negatively affecting the market so the first two behaviors and we assess after the fact so we see that there is a problematic cartel or a dominant position that's acting abusively and then we regulate them but then with on the other hand there's murder control that we regulate before it actually happens um sorry no go ahead yeah and i was going to ask you um what is the eu's policy towards such big companies like google or facebook and are they perceived by the eu as a threat to the digital free market um yeah so the policy in general is um is the eu regulates uh these these three let's say types of behaviors and then with the emergence and development of the big digital companies there's been a lot of challenges in applying this traditional understanding of let's say how to find markets or how to measure market power or what sort of behavior is abusive to translate this from traditional brick and mortar companies to these online environments so i wouldn't necessarily say that that you or the commission that actually is the institution in the eu which handles uh competition law enforcement that negatively see or immediately sees these companies as bad or as violating the policy it's more about the type of behaviors that they sometimes employ so there's already been a few of cases concerning google and amazon by the european commission where it for example have found that certain types of behaviors uh have violated eu competition policy like one big case that was also recently re-emerged is the google shopping case where very complicated case but to to maybe summarize it briefly was that google was found to abuse its dominant position on the market of search engines and and so on because it was favoring its own shopping products when someone was searching for a specific product the first thing that they would see on the google search we were products that were also sold by google or like through google's intermediary shopping site um so by employing an algorithm that worked in that way um this could have led to people choosing or whoever was searching for a particular product choosing the the one that google suggested first rather than scrolling through a number of pages to then see something um that another page was selling uh so this was found to be problematic and then of course google had appealed and then late last year the uh general court ruled that in general didn't agree with all of the commission's uh reasoning but that in general it upheld the commission's decision that this was indeed abusive so this is a very interesting development indeed to to see how this works and how these these digital companies can these gatekeepers actually can then um work abusively in a way like this like that and actually a fun fact a similar kind of theory of harm and has been um we don't actually know because the proceeding hasn't ended but it has been um developed or discussed in terms of polish competition authorities proceedings into or investigation into allegra's practices and whether it's also not like favoring its um yeah own things when searching and kind of a similar uh behavior was found with regards to amazon um and yeah the eu especially with the current executive uh vice president the commissioner for uh competition and the digital age has has been very vocal about trying to um to act and to indeed adjust the eu approach to or eu competition law enforcement approach to these issues and to make sure that european customers are duly taken care of and such um and yeah there's been a development uh with regards to the digital services and markets act which both um tried to tackle them some of the issues that the gatekeepers have been posing and generally defining that and trying to adjust the way we can apply consumer regulation online data protection and to some extent competition enforcement in regards to these big companies but then i think it yet remains to be seen how well these mechanisms will work and to what extent they can actually be enforced and regarding the abusive dominance and competition policy you wrote an article those titled unprecedented judgment of the warsaw competition and consumer protection court amending a merger prohibition decision and you wrote in that article about the controversial judgment that was in poland that was criticized for its possible political motivations so could you tell us about the judgment and is it a threat that that the government can um put political motivations behind such decisions right yes so of course very happy to talk about this so the case at hand um was the merger uh merger prohibition decision so a situation in which the companies who wanted to merge notified the merger to the competition authority and the polish competition authority prohibited the merger which is already a very rare circumstance like um because in in those merger cases uh the competition authority in most cases clears the transaction and so the companies can go ahead and merge and when it actually finds that um that the murderer may harm the market there may be some negative effects it conducts a long and longer investigation and then usually in most cases like that it will offer some conditions for those companies um that will allow them to merge so so that means that um yeah they can they can merge but they need to for example sell some of their assets or to behave in a certain way so that the merger doesn't actually negatively affect the market and that is why the prohibition decisions are very rare so in them in that decision this was of january 2021 in the agora uh attempted acquisition of el rosette the competition authority did not allow any conditions it strictly prohibited the merger claiming that um it will negatively affect the markets mostly for uh radio broadcasting and the idea in the decision was that in the very somewhat indirect and distant future uh because of the way the markets will be structured after the merger there is there may be a risk um of of harming the competition uh and this is what was mainly criticized because uh in the the way we understand competition law in general right now traditionally is that the merger may be prohibited if the analysis shows that there's direct links between the transaction and um a negative impact on competition which is not something that you could really assert from that decision that was one thing and then the other was that it was assessing uh very technical uh coordinated effects of horizontal mergers in a way that is not really compatible with the general and decisional practice of the competition authority of the polish composition court and generally not the way it's been understood in the doctrine and so this is what happened back then everyone was um i mean everyone all the competition doctrine in general was shocked by this decision being so strict and also giving such um confusing uh arguments um this was one thing and the other is that as there's already been a lot of discussion on the fact that the president of the polish competition authority cannot really be said to be an independent and impartial uh body because of the way that they're elected as as this is a position that's directly elected by the government and the prime minister can um take down the head of the polish competition authority at any point and which obviously means that the president is politically nominated is someone that um the government chooses um and then we can also see that maybe less with this um head of the competition authority but the previous one which was also nominated by the korean government and that they're also often very outspokenly supporting the government um in various proceedings they're on one hand they're acting in a way that the government um says they are going to act and then the competition authority follows the government in their actions but on the other hand um they also uh implement their policies aligned with them with the current ruling policy and you can observe that then there's also some research done on um on how it developed since the current ruling party took over in poland and how and the competition authority has been acting since so um as this is the background for the case and we can also see that uh agora and eros that are um are some of the media actors in poland that are rather critical of the government um so when you put all of these pieces together that you have a strong dependent politically head of the competition authority that obviously steers the work off all of the competition authority and such high-profile case would definitely be something they're involved with you have a very dubious theory of harm and evidence gathered in the case and you have a prohibition decision and well it all comes together when when you think that there may have been some political motive for not allowing this um this concentration because well yeah like there may have if a proper competition analysis was applied perhaps there could have been risks but this is very the way the competition authority was justifying its prohibition decision it's hard to to find this proper competition um reasoning that would justify that so uh this is the what happened last year and the last week i think it was 12th of may 2022 uh the warsaw competition consumer protection court which is the body that deals with the appeals of the decisions of the competition authority issued a judgment um which was also unprecedented and absolutely groundbreaking because it not only uh repelled the decision of the competition authority but it also amended it using the competence to like do a full review of the facts of the case it said that the merger should be cleared or not that it should be cleared it did clear the merger so after the judgment um well of course the competition authority already said that it's going gonna appeal this judgment to the highest court and then we'll see what happens then so the the judgment is not um operational yet but the the idea is that um that the company should be able to merge and this shows that the in the opinion of the court the judgment uh the sorry the decision of the competition authority was wrong it was a mistake and then well kind of hints to the what i was talking about so the potential um i mean the judgement doesn't hint to that the fact that it happened hints to the fact that and this could have been some shady um political motive behind this decision that lacked legal or economic reasoning and yeah and and i think uh that's that's a very interesting development to see that the court did that and well uh it goes hand in hand with a lot of the academics have been talking about in regards to this judgment uh so that's that's good to see that this civil society can have a say um and yeah for sure this case uh very well illustrates what happens when um or rather what can happen with a rule of law backsliding or democratic backsliding occurs and what the impact of populist politics um on the functioning of a competition law system or market in general what it can be and actually there is a really good book that my phd supervisor professor mache bernard wrote about this so if you're interested in the topic i really recommend the populist and anti-trust and the title goes on but very much yeah digs into how um the system is changed both in terms of the institutional institutional design of the competition law enforcement but also the practice of enforcement itself and what the risks are um and i think yeah this case illustrates that very well doesn't happen often that there are some political motivations behind such um competition policy decisions um i think um it's it's a hard question because um you can look at political political motives in different ways right like their the competition policy as any other policy obviously has some deeper bigger philosophical political idea in mind like for example the fact that eu competition policy very much differs from u.s competition policy is already a political choice right so like we in europe have decided to protect these values uh the us has opted for different types of values so the systems differ um but i think this is so also for example with the digital platforms you can see it very well that there's voices in the debate on how to regulate big tech there's those voices who say uh this should not be allowed to be this big we should break down the big tech companies in general there are voices on the opposite spectrum that say uh they're it's competition on merits so they should be as big as they want it's like as long as they're not doing anything bad in the traditional way which doesn't really work uh to apply it like that but there's that side and then there's you know somewhere in the middle so these are all political choices when you're let's say designing competition policy and of course um it impacts the way you design the or who designs the law as it always does and but i think the difference is uh with this and for example with the agora or set case and that the law stays the same right but then the competition authority or the courts apply it in different ways and then of course we never know for sure because no one from the competition authority is going to come out and say to a press conference say we made this decision because the government told us to do so it's more um something that you can infer from well the general context um but yeah like i think i think to answer your question more briefly it's uh unfortunately sad to say that there's been more and more situations where you can spot these issues so for example in my phd research i'm looking into the role of competition law on the media markets um and kind of taking this political context into account more specifically so besides the uh agora case uh maybe you've also heard about the merger between pekka and orlan and um porsche press which also has been very criticized for its political um implications being that pacquiaon ireland is literally a saint-o enterprise that already had acquired rook which is one of the biggest press distributors and has now acquired porsche press which is uh publishing houses like dailies and weeklies regional play press so now and then pekka in orlando has gas stations where it also sells press so it's been argued that it essentially has this structure of a wholesale retail um and no sorry first the publishing and wholesale and then retail uh distribution of press and that it can be very dangerous to say that for example from now on uh they're not distributing or they're not selling on the gas station's um press that's been issued by um a different publishing house for example than porsche press like these kind of links could happen there while uh so there's a lot of uh controversies already in the transaction itself but then it's also very interesting to see that this decision clearing this merger without basically any doubts and not even going into those space two proceedings where the proper like it's properly analyzed uh it was cleared i think three weeks after the agora er rosette was prohibited so you can see uh different very different approaches to these two cases um and yeah there's um there's that for example but then it's not just the polish issue uh this is for example so very prevalent in hungary with regards to media markets that um they have a slightly different competition enforcement system but in short there's also been a massive media conglomerate created through the system of mergers mergers that have been exempted from proper competition review on requests of the hungarian government and then now the conglomerate has direct ties to the government and it produces press or media that are fully in line with them with the government so um so yeah like unfortunately this is something that happens or that can be spotted um particularly maybe maybe relevant on these um you know more sensitive or well media markets i guess or something particularly powerful and important to them whoever is in charge and so i guess from their perspective it would make sense to go to you know have more influence there than i don't know on the markets for shopping malls or but even in those cases you can see i think this was also a hungarian example of some issues regarding agriculture and how and the government has been meddling in competition cases regarding some yeah under across agriculture issues um but yeah i think it's definitely not something that we want in competition enforcement that i think politics are there on the background when designing the policy you're picking your aims and goals and uh choosing solutions that are in line with what you believe in but then when you already have the law and then you're enforcing it you should not follow anyone's orders but the laws um so for sure the issue of independence is very important this is for example something a different type of eu competition policy one could say that there's recently been this directive called the ecn plus directive that for example requires member states to pass laws to ensure a decent degree of independence of their competition authorities um so the eu to some extent also aims to regulate uh the procedural or institutional aspects of or rather this is the directive so it doesn't directly regulate how it works in the countries but more sets standards for how countries should regulate it um but for example with regards to poland this directive hasn't yet been transposed even though it should have been in february i think so we will still have to wait and see how this is actually um implemented in our system and whether the competition authorities granted a bigger degree of independence and impartiality and maybe some safeguards of autonomy but also accountability um yeah yeah and you know in order to further uh amend their competition policy the european commission in december 2020 proposed two legislative initiatives and to upgrade rules governing digital services in the eu and these were called the digital services act dsa and the digital markets act dna so my question is what are they and what do they change on the european markets right um so i i had briefly mentioned them before but i'm happy to elaborate uh so i think that the amaze no bsa's final um version has already been passed um and essentially so that the digital services act mainly aims at regulating um platform behavior accountability um more in regards to consumer protection while the digital markets act is more focused on regulation as such so um yeah again what kind of behaviors platform can do but more on the scale of the market rather than their interaction with consumers for example so both of them aim to um general terms and enhance the the online environment for european consumers for example yeah by defining what gatekeepers are what obligations they have how they should treat consumers um things like that and i think they they were a good step for sure we're still gonna have to see how how effective they actually are and for example with the if um the takeover of twitter for example happens the commissioner commissioners have already talked about how elon musk is gonna have to comply with the dsa and like the online protection of consumers but at the same time um yeah how how are they actually gonna be implemented what's the role for national competition authorities do they have any role at all in um in enforcing the digital markets act and so on these are still the questions that i feel are very much up in the air but i think it's um it's generally a good trend that the european commission tries to move forward with these um developments in the world new technologies and so on and that yeah it yeah it fights for the european consumers to um to create this safer better online environment and i think especially the the past years of the covet 19 pandemic when people were spending most of their time online interacting with others and social networks doing their shopping through e-commerce enjoying tv on some streaming platforms and so on so forth and this only highlights how how big these technologies are in our lives right now and how desperately they need to be um regulated before they harm consumers who again are not always even aware that they're being harmed yes that's true so my last question to you actually um is what difficulties are there and will be there in the future with competitiveness control in the digital markets uh okay so i think then one of the issues that is there is that okay yes the structure of the market is very this is one of the very first challenges that we've noticed but i think to a large extent it's still present that the structure of the online market is very different than the structure of traditional markets because it in some ways because in traditional let's say let's take um commerce as an example right so traditionally if you were to um to buy something offline you just go to a shop and buy it and the transaction would be between you and the you the customer and the shop um and the shop could could have been an individual business owner or a large company or whatnot but they would still be a transaction between a consumer and a business well uh when you're shopping on a business pla on a large e-commerce platform like um amazon for example you're often interacting with not just um another business but you're buying also things from other consumers who are selling things online so and the interaction is actually three-sided right because you have a consumer who wants to buy something you have a consumer sometimes a business but also a consumer who wants to sell something and then the platform was um operating in the middle of this um and this is still not really um tackled what the role of that platform is to what extent the platform is accountable to what extent the platform uh yeah takes any responsibility for whatever actions either of the parties so this is uh the multi or two-sided structure of the market is already has already been an issue and it seems like um it won't really fade away especially with the fact that and there's more and more different ideas and types of businesses that use this platform business model online um the other issue may be more related directly to competition concerns is that the traditional mechanisms in which we assess um let's say abuse of dominance or any like competitive issues are often based on positive prices for example so the fact that something is too cheap or too expensive or um just wrongly priced discriminating someone so well um as as anyone who uses the internet and online platform knows uh most of them don't actually require you to pay any money any positive price for your presence there so as we already talked about how their business model in most cases works is that they make money off the advertising advertising uh who by commodifying the data of the users were there for free um so that advertisers get their data and apply algorithms that target them with their advertisements and and this is something that a certain extent can escape uh competition control because there's um some some prominent academics still claim that this is not a competition law issue at all because without prices you don't have markets so what are we even talking about but um with that maybe more um progressive way of thinking about this uh of course there's markets and of course there's uh prices they're just not expressed in um in money but then on the other hand it's difficult to quantify or assess the risks to let's say uh abusing the market for attention what what what does that even mean um and then with the question of data being used um there's voices that saying that perhaps this is this is an issue but it's not an issue for competition law but maybe more for data protection law or privacy law um but at the same time data and privacy law maybe don't have mechanisms as strong as competition not to deal with that and then on the other hand um these issues are actually what uh creates these uh imbalances on the market and what gives them the dominant position or um so it's it's there's a lot of those uh complicated elements um of essentially looking at how very very very simple terms uh online platforms differ from what we've been dealing with so far and the risks that are there um and yeah finding new mechanisms or adjusting the old mechanisms to to apply to them but also using different branches of law like consumer protection and data protection privacy and so on so that they work coherently together with competition law and that they actually create yeah proper framework for protecting other businesses and consumers um thank you very much for this lovely and fascinating meeting and my guest was marta schneider thank you very much thank you