An Intra-Platform Competition Law Analysis of the Particular Terms of Use of Gatekeeper Marketplaces

Digital markets have seen the rise of some online marketplaces that besides having a dominant position in the online intermediary market, and are unavoidable gateways for optimal sale of goods and digital content. The operators of these marketplaces can also be likened to gatekeepers of the downstream markets who monitor and control the market entrants.

The subject becomes doubly important when we realize that some gatekeeper marketplaces as well as operating in the relevant platform market, have a direct presence in the downstream market. It is possible that these marketplaces, considering their gatekeeping position, impose conditions on the business users that pervert the path of intra-platform competition. Three contractual conditions, namely “anti-steering provision”, “mandatory use of marketplace's payment processor” and “marketplace right to use of non-public user data”, are means through which the gatekeeper can protect their legitimate interests, but their enforcement can also leave some anti-competitive effects. Given the increasing use of online marketplaces in Iran, having regarded the approaches and practices of leading competition law systems this article is going to analyze the abovementioned imposed conditions in the light of Iranian competition law norms as the balance between the necessity of promoting intra-platform competition and legitimate interests of marketplace owner is kept. The results of study shows that although some imposing and restricting terms of use may be regarded as anticompetitive practices specially in situation that direct competitors of marketplace are affected but we cannot consider them always as per se illegal arrangements that should be condemned.