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

Document Type : Original Article

Authors

1 Assistant Professor, Faculty of Law, Shahid Beheshti University, Tehran, Iran.

2 Intellectual property LL.M graduate of Shahid Beheshti university law faculty

Abstract

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.

Keywords

Main Subjects

References

  1.  

    References

    Books

    1. Casado, Maria. E-FOOD: Closing the Online Enforcement Gap in the EU Platform Economy, Germany: Springer, 2021.
    2. Elsan, Mostafa, E-Commerce Law, Thran: Samt, Fourth Edition, 2017. (in Persian)
    3. Ghaffari Farsani, Behnam, Competition Law and its Civil Remedies, Thran: Mizan, First Edision, 2014. (in Persian)
    4. Jennings, Marianne et al. Business Law & The Legal Environment, United States: Cengage Learning, 2021.
    5. Jougleux, Philippe et al. EU Internet Law in the Digital Single Market, Germany: Springer, 2021.
    6. Kokkoris, Ioannis., Lemus, Claudia. Research Handbook on the Law and Economics of Competition Enforcement, United Kingdom: Edward Elgar, 2022.
    7. Manganelli, Antonio., Nicita, Antonio. Regulating Digital Markets: The European Approach, Switzerland: Springer, 2022.
    8. Rahbari, Ebrahim and Vahid Hassani Sangani, Competition Law in The Realm of Intellectual Properties. Volume 2, Tehran: Samt, First Edition, 2019. (in Persian)

    Articles

    1. Borgogno, O., Colangelo, G. “Platform and Device Neutrality Regime: The Transatlantic New Competition Rulebook for App Stores?”, Stanford TTLF Working Papers, Stanford-Vienna Transatlantic Technology Law Forum, 83, 2022.
    2. Geradin, D., Dimitrios, K. “The antitrust case against the Apple App Store”, Journal of Competition Law & Economics, 17 (3), 2021.
    3. Ghasemi, Mojtaba and Mostafa Abdollahi Neysani, “Optimal Economic Regulation of the Online Platforms”, Legal Research Quarterly, Volume 24, Issue 94, 2021. (in Persian)
    4. Liu, Z., Vryna, S. “New antitrust tools for the digital economy in China and the EU; A comparative view of the Platform Antitrust Guidelines in China and the Digital Markets Act in the EU”, European Competition Law Review, 43 (10), 2022.
    5. Rahbari, Ebrahim, “An Evaluation of the Particular Examples of the Abuse of Dominant Position by the Use of Big Data in Competition Law”, Public Law Research Quarterly, Volume 25, Issue 81, 2023. (in Persian)
    6. Reverdin, V. M. K. “Abuse of Dominance in Digital Markets: Can Amazon’s Collection and Use of Third-Party Sellers’ Data Constitute an Abuse of a Dominant Position Under the Legal Standards Developed by the European Courts for Article102 TFEU?”, Journal of European Competition Law & Practice, Volume 12, Issue 3, 2021.

    Reports and Contributions

    1. Australian Competition and Consumer Commission, “Digital platform services inquiry (Interim report No.4; General online retail marketplaces)”, Australia, 2022.
    2. European Commission, “Commission Staff Working Document Accompanying the document Report from the Commission to the Council and the European Parliament Final report on the E-commerce Sector Inquiry (SWD/2017/0154 final)”, Brussels, 2017.
    3. Germany Monopolies Commission, “Competition policy: The challenge of digital markets”, Special Report by the Monopolies Commission pursuant to Section 44 (1) (4) ARC, Germany, 2015.
    4. The Netherlands Authority for Consumers and Markets (ACM), “Market study into mobile app stores”, A report by ACM for the Case no:18/032693, The Netherlands, 2019.

    Antitrust Cases and Regulations

    1. European Commission, “Digital Markets Act”, Brussels, 2022.
    2. Turkish competition authority, “Trendyol Case (Decision Number: 21-46/669-334)”, Decision of The Competition Board, 2021.
    3. United States District Court (Northern District of California), “Epic Games Inc. v. Apple Inc. (Case No.4:20-cv-05640-YGR)”, Rule 52 order after trial on the merits, 2021.

    Internet sources

    1. Amazon Inc., “Amazon Services Business Solutions Agreement”, 2023, Available at: https://www.abilityone.gov/laws,_regulations_and_policy/documents/Amazon%20Services%20Business%20Solutions%20Agreement.pdf ,Last visited: 2024/09/04
    2. Amazon Inc., “Amazon.com Privacy Notice”, 2023, Available at: https://www.amazon.com/gp/help/customer/display.html?ie=UTF8&nodeId=468496&ref_=footer_privacy ,Last visited: 2023/06/06.
    3. Apple Inc., “App Store Review Guidelines (Introduction)”, 2021, Available at: https://developer.apple.com/app-store/review/guidelines/ ,Last visited: Last visited: 2024/09/04.
    4. Apple Inc., “Paid Applications Agreement (Schedules 2 and 3 of the Apple Developer Program License Agreement)”, 2020, Available at: https://developer.apple.com/support/downloads/terms/schedules/Schedule-2-and-3-20220225-English.pdf ,Last visited: 2023/06/06.
    5. “GWB Digitalization Act”, 2021, Available at: https://www.bundesrat.de/SharedDocs/beratungsvorgaenge/2021/0001-0100/0038-21.html ,Last visited: 2024/09/04.
    6. Cafe-Bazaar Inc. “App publishing rules (payment)”, 2021, Available at: https://developers.cafebazaar.ir/fa/app-publish-guidelines/rules/payment ,Last visited: 2024/09/04. (in Persian)
    7. Andrew, “US Supreme Court snubs Apple-Epic Games legal battle”, 2024; Available at: https://www.reuters.com/legal/us-supreme-court-snubs-epic-games-legal-battle-with-apple-2024-01-16/ ,Last visited: 2024/09/04.
    8. Digi-Kala Inc. “Sellers Terms & Conditions”, 2022, Available at: https://seller.digikala.com/registration/termsconditions/ ,Last visited: 2024/09/04. (in Persian)
    9. Ensaf News Agency, “A Member of Iran Chamber of Commerce: SATARA Is Against Competition”, 2022, Available at: Last visited: 2024/09/04. (in Persian)
    10. European Commission, “Antitrust: Commission accepts commitments by Amazon barring it from using marketplace seller data, and ensuring equal access to Buy Box and Prime”, 2022; Available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_22_7777 Last visited: 2024/09/04.
    11. European Commission, “Antitrust: Commission opens investigation into possible anti-competitive conduct of Amazon”, 2019, Available at: https://ec.europa.eu/commission/presscorner/detail/en/IP_19_429 ,Last visited: 2024/09/04.
    12. European Commission, “Antitrust: Commission opens investigations into Apple's App Store rules”, 2019, Available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1073, Last visited: 2024/09/04.
    13. Google Inc., “Google Play Policy Center (Payments)”, 2022, Available at: https://support.google.com/googleplay/android-developer/answer/9858738 ,Last visited: 2024/09/04.
    14. Myket Inc. “Introduction to Myket App Store (In-App Billing)”, 2022, Available at: https://myket.ir/kb/pages/myket-iab-intro/ ,Last visited: 2024/09/04. (in Persian)
    15. Pepper, Richard et al., “The European Commission designates six gatekeepers under the Digital Markets Act”, 2023, Available at: https://www.macfarlanes.com/what-we-think/in-depth/2023/the-european-commission-designates-six-gatekeepers-under-the-digital-markets-act/#:~:text=The%20Commission's%20designations%20confer%20gatekeeper,Apple%20(App%20Store%2C%20Safari%20and .Last visited: 2024/09/04.
    16. SnappFood Inc., “Contract Models”, 2021, Available at: https://vendors.snappfood.ir/%D8%A7%D9%86%D9%88%D8%A7%D8%B9-%D9%82%D8%B1%D8%A7%D8%B1%D8%AF%D8%A7%D8%AF%D9%87%D8%A7/ ,Last visited: 2024/09/04. (in Persian)
    17. Torabi, Arash, “The Battle Between Two Tech Giants of Iran: How Come Sheypoor Was Suspended from Café-Bazaar App Store?”, 2018, Available at: https://way2pay.ir/108396/ ,Last visited: 2024/09/04. (in Persian)
    18. Vincent, James “EU says Apple breached antitrust law in Spotify case, but final ruling yet to come”, 2023; Available at: https://www.theverge.com/2023/2/28/23618264/eu-antitrust-case-apple-music-streaming-spotify-updated-statement-objections Last visited: 2024/09/04.

     

Files

History

  • Receive Date: 07 July 2023
  • Revise Date: 15 February 2024
  • Accept Date: 12 May 2024

Share

How to cite

Statistics