Google, Alibaba, Global Antitrust Standard

People love a “missing billionaire” story, even when there isn’t one. That’s what many Western media outlets and some “Substack experts” have been hotly discussing lately: “Where is Jack Ma?” As Alibaba’s stock price gyrates, all this reminds me of was the false rumor about Warren Buffett’s declining health in 2000 that sent Berkshire stock to a 52-week low.

Ma is most likely just doing Tai Chi at home, during a time when no one in China is traveling abroad and there’s no Davos after party to go to anyway. Besides, laying low after a high-profiled speech is the smart thing to do; there’s nothing worth being public about right now.

Instead of wasting more energy “looking for” him, what’s perhaps more worthwhile to look into is China’s new antitrust regulatory framework. The most important document to understand is the “Antitrust Guidelines for the Platform Economy”, a draft policy released by the State Administration for Market Regulations. (The public commenting period is now over and the policies are in effect. I have put the official Chinese document in this Google Doc for easy reading and referencing.)

Antitrust investigations in the air everywhere, so it’s no longer strictly a national issue. Examining Google’s antitrust experience with what’s in the “Antitrust Guidelines for the Platform Economy” document, projecting what may happen to Alibaba, and thinking about whether a global antitrust standard can (or should) emerge is what I’ll focus on in this post today.

Google’s Antitrust Experience

Google has been the biggest antitrust target in the last 10 years, so its experience is the most instructive. Here’s a list of the major actions that have happened so far from the EU and US, noting the core complaints and timeline for reasons that will become apparent later:

• November 2010: the European Commission (EC) investigated Google’s search algorithm for favoring Google Shopping listings and downgrading third-party listings.

(Result: April 2015, formal complaint issued based on a 5-year investigation; June 2017, Google was fined €2.4 billion or $2.7 billion or roughly 2.5% of Google’s 2016 revenue.)

• April 2015: the EC started investigating Android for abusing its dominant market share to force smartphone makers to pre-install Google apps and services.

(Result: July 2018, Google was fined €4.3 billion or $5 billion or 4.5% of Google’s 2017 revenue; Google is appealing this fine.)

• July 2016: the EC issued a separate complaint derived from the same investigation from 2010 about Google forcing its direct partners to only use AdSense and no other competing advertising services.

(Result: March 2019, Google was fined €1.49 billion or $1.68 billion or roughly 1.2% of Google’s 2018 revenue.)

• October 2020: the US Department of Justice (DOJ) along with 11 Republican state attorneys general sued Google for pushing out competing search engines by, among other things, paying Apple roughly $12 billion each year to make Google the default option on Safari and iPhones.

(Result: pending, tentative trial start date is Sept 23, 2023(!))

• December 2020: a different group of more than 30 state attorneys general, led by Colorado and Nebraska, sued Google for mostly the same thing as the DOJ suit, except for one additional complaint about Google discriminating against the results of other “vertical” search services, like Yelp for restaurants and Kayak for travel.

(Result: this suit will likely be merged with the DOJ suit since the allegations are similar)

• December 2020: another smaller group of state attorneys general, led by Texas, sued Google for monopolistically controlling the entire digital advertising supply chain and allegedly making an illegal deal with Facebook to ease up competition in exchange for preferential auction treatment for Google’s ads listing.

(Result: pending)

I have painstakingly noted both the core complaint and timeline of each investigation to underscore two big lessons we should draw: the framework being applied to Google seems either ad-hoc or outdated, and the multi-year timeline is counterproductive to the goal of promoting competition -- a stated purposed in the current antitrust framework.

Let’s dig into each a bit more.

Framework Weakness

I’m not familiar with the European legal framework or tradition on antitrust -- a topic I need to learn more about. But the American one is based mostly on the Sherman Antitrust Act of 1890. The target back then was Big Oil. This framework has persisted, so much so that the DOJ official announcement of its lawsuit proudly noted this tradition that broke up Standard Oil, AT&T, Microsoft, and now, potentially, Google.

The major purpose of the Sherman Act framework is to protect consumer welfare from companies who can increase prices when they reach monopolistic status. This way of thinking is rather outdated when applied to Internet companies, like Google and Amazon. The Internet is a free and open network that has enabled almost-instant delivery of products and services to billions of people. The dominant Internet services -- Google’s search, Amazon’s e-commerce, Facebook’s social network, etc. -- become dominant precisely because they are delivering valuable services to consumers that are either dirt cheap or completely free. In an antitrust framework focused on “consumer welfare protection”, it’s hard to pin down Big Tech, because it’s hard to argue against something clearly valuable that’s free. Unsurprisingly, that is Google’s most frequently used pushback against these investigations.

There is another goal to the current antitrust framework -- promoting competition, but that is still in support of the ultimate goal of protecting consumer welfare. The issue is we haven’t deeply re-examined the assumption that more competition will grow consumer welfare. It’s debatable whether Yelp is better for searching restaurants or Kayak is better for looking up flights compared to Google. (Personally, I have found Google’s flight search convenient and a breeze to use.) Of course, it’s valid to argue that Google became better precisely due to some anti-competitive behaviors. Or are those just valid competitive behaviors? That’s the hard question that the current framework is ill-equipped to answer.

The dilemma here is that harming competition does not necessarily reduce consumer welfare. So promoting competition for its own sake, which seems to be the intention of many of these investigations, seems to miss the point.

Even if we assume that more competition is good overall, thus worth pursuing on its own merit, the execution of these investigations is doing a poor job of delivering on that goal. The timeline is so long it’s becoming counterproductive.

Long Timeline

Whether it’s the EC or the US DOJ, they all seem to operate on a multi-year timeline. While these investigations should be thorough and not rushed, the current speed (or lack thereof) is literally killing startups’ capacity to compete.

Most startups die well before they reach five years old. And if you are a startup whose product or service bumps up against Google, leading you to file an antitrust complaint, your chances of survival is already slim. The best case outcome may be to just get acquired by Google, while complaining about Google.

Having taken up the mantle first, the EC’s initial five year investigation may be warranted. But there does not seem to be much exchange or transfer in knowledge from the European investigations to the American ones to speed things up, even though the essence of the American complaints are not that different. The almost three-year period between the DOJ’s announcement and the first trial date seems unfathomable.

Meanwhile, a company as wealthy as Google can keep many antitrust lawyers gainfully employed, let these investigations slowly play out, and continue its current behaviors and make money hand over fist. (As far as I can tell, there’s no preemptive injunction to any of the alleged anti-competitive behaviors in the pending lawsuits.) And the startups who are being outcompeted, fairly or unfairly, can either wait, pivot, or die.

The Sherman Act framework is a legacy that needs to be adapted to the 21st century. Its execution can also use some 21st century speed to match the pace that its Big Tech targets are moving. What this regulatory system could use is a set of clear, detailed rules and anti-competitive behaviors that are tailored to how Internet platforms operate.

That's where the Chinese antitrust framework could come in.

Being an old civilization but a young country, China does not have much experience or legacy when it comes to antitrust. It didn’t have Big Oil, Big Tobacco, AT&T or Microsoft. That youth has its pros and cons, as I noted in “Alibaba and Antitrust with Chinese Characteristics.” China’s antitrust regulations are being developed mostly from scratch and have been a muddy picture until late last year.

Now that the policies are more clear, are there parts that the US and EU jurisdictions should reference to better evolve their own frameworks?

Alibaba and China’s New Regulations

To see whether there’s anything worth referencing, let’s look into some specific sections of the “Antitrust Guidelines for the Platform Economy” document in more detail.

This document is tailored to specifically target the behaviors of Chinese Internet companies, not a general framework to cover the entire Chinese economy. That may be by design, because many sectors are state-owned and thus definitionally monopolistic. It’s a real life outcome of the pros and cons mixed together. The pros are the rules are very up-to-date with how the Internet economy and tech platforms work. The cons are it conveniently leaves out other monopolistic industries.

For the purpose of exchange rulemaking practices, I do think there are sections worth studying for US and EU regulators. In particular, Chapter Three on “Abusive Behaviors from Dominant Market Position” outlines many types of anti-competitive behaviors.

Here’s a few sections from Chapter Three I’d like to highlight:

• Section 13: “Selling below cost” (If this rule was part of the US antitrust framework 20 years ago, Amazon’s strategy that squeezed out Diapers.com would’ve been illegal.)
• Section 14: “Refusal to Transact” (This section would cover the EC’s complaint in 2016 Google forcing direct partners to only use AdSense.)
• Section 15: “Restrictions to Transact” (This section mentions the “choose one out of two” practice, which is the basis for investigating Alibaba. Other parts of this section would cover the EC’s 2010 complaint regarding favoring Google Shopping and the US lawsuit about discriminating against the likes of Yelp and Kayak.)

The entire Chapter Three is worth reading for a painstakingly detailed catalogue of what is anti-competitive and how you can tell. The rules are applicable to antitrust situations outside of China, because Chinese tech giants closely study the strategies of the American giants. Increasingly, the reverse is happening as well. The playground for Big Tech everywhere is global, not national.

Of course, writing rules is the easy part, especially when the target is obvious. Promulgating, implementing, and adjudicating complaints fairly and quickly based on the rules is the real test. The Chinese regulators’ first test is their investigation of Alibaba, announced on last Christmas Eve.

Given how closely tailored the rules are, it’s almost certain that Alibaba will be found guilty. What’s important to watch is speed, reasoning, and effect on the market afterward. If the Alibaba investigation can be concluded by the end of 2021, with a clear set of generalizable rationale and a real shift in China tech’s competitive dynamic, that would be a more successful execution than what has happened so far in the EU and US.

Need for Global Antitrust Standard

Laws and regulations always lag behind technology, as it should in order to not thwart innovation. The hard problem to solve is when and how quickly they should catch up. And the best way to catch up is to learn from others and not reinvent the wheel.

China has been learning from both the US and EU. This is evident in the People’s Daily column commenting on the Alibaba antitrust probe, where both the US antitrust investigations and the EC’s fines of Google were referenced. If there’s something worth leveraging from what China is doing, it’d be smart (and only fair) for American and European regulators to do the same. Not only would this type of rule-making exchange benefit each respective jurisdiction, it would help establish a global antitrust standard that is badly needed.

Big Tech from the US, China, and possibly from elsewhere in the future are already mimicking each other. Without a global standard that’s globally applied, they will continue to do what they do, just in different locations -- an infinite game of worldwide whack-a-mole.

Based on my personal experience in government, middle and senior-level rulemakers are quite willing to engage with and learn from similarly ranked officials from other countries, because most of them are technocratic civil servants, not showy politicians. They genuinely care about writing good rules!

As multiple antitrust investigations proceed in parallel, I believe the raw materials for establishing a global standard already exist. Such a standard can and should emerge. The hurdle now is will politicians stop politicizing every government-to-government exchange, step out of the way, and let the rulemakers make rules.

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