Regulatory authorities around the world are targeting the big US tech giants. However, while investors need to keep a watchful eye on developments, Big Tech’s stranglehold and influence on numerous economic sectors will be hard to loosen.
Alfred Chandler, a leading US business historian, once described the post-civil war US economy as “ten years of competition and 90 years of oligopoly”. His observation feels as true as ever, with Big Tech representing the latest incarnation of his prophecy.
Among the antitrust accusations is a charge that certain companies are undermining democracy by facilitating the exponential growth of fake news, extremist content and failing to tackle the malign actions of hostile states. The lengthening list of complaints also includes claims social media addiction is a growing problem, data privacy is being undermined, and Big Tech companies are failing to pay their fair share of tax.
The success of Apple, Amazon, Alphabet (parent company of Google), and Facebook has led to an exponential increase in their market worth, in turn delivering stunning returns for investors. As of June 29, their collective worth was $6.66 trillion – 13 per cent more than the largest 100 British, 30 German and 40 French companies combined.1
Figure 1: Big Tech stocks soar (combined market values $ billion)
Source: Eikon Datastream, Aviva Investors’ calculations, as of June 2021
Unfortunately for shareholders, the rapid increase in share prices has drawn the attention of regulators around the world and led to potentially the most damaging complaint of all: that these companies have become too powerful and are behaving in an anti-competitive way. By exploiting their scale and network effects, firms are accused of crushing would-be competitors and suppliers in markets such as e-commerce, app stores, social media, internet search and cloud services.
The European Union, long considered the world’s most aggressive regulator of Big Tech, released long-awaited drafts of its Digital Services Act (DSA) and Digital Markets Act (DMA) at the end of last year. One of the key aims of the legislation is to ensure ‘gatekeepers’ will not be allowed to use “unfair practices towards the business users and customers that depend on them to gain an undue advantage”. The EU has also filed antitrust charges against Amazon.
From scrappy start-ups to monopolies
Suddenly, having for years avoided clashes with Washington, tech companies have begun to attract the unwanted attention of authorities there, too. In October 2020, US lawmakers said Amazon, Apple, Facebook and Alphabet had turned from “scrappy” start-ups into “the kinds of monopolies we last saw in the era of oil barons and railroad tycoons”. In a scathing 449-page report presented by the House Judiciary Committee’s Democratic leadership, companies were said to have abused their dominant positions, setting and often dictating prices and rules for commerce, search, advertising, social networking and publishing.2
Tech companies have begun to attract the unwanted attention of authorities in the US
The list of charges includes allegations that Apple harms app developers by taking a big cut of their revenue and pre-installing its own apps on its devices to encourage phone owners to use them rather than potential rivals such as Spotify; that Google favours its own products in search results over those of third-party search engines such as TripAdvisor; and that Amazon uses business data to gain an unfair advantage over merchants operating on its platform.
Facebook also faces accusations its $1 billion purchase of the photo-sharing app Instagram in 2012, and $19 billion acquisition of the global messaging service WhatsApp two years later, were driven by the desire to take out potentially harmful competitors.
In what appear to be an incriminating series of emails sent in 2012, six weeks before Facebook acquired Instagram, chief executive Mark Zuckerberg wrote that one of his motivations for the purchase was to "neutralize” a potential competitor.3
Other countries have jumped on the bandwagon. Among a slew of complaints, Australia’s competition regulator has accused Google of misleading consumers to get permission for use of their personal data for targeted advertising; Britain’s watchdog has opened an investigation into Apple over its terms and conditions for app developers; China is preparing to launch an antitrust probe into allegations Google has leveraged the dominance of its Android operating system to stifle competition; and Canada and India are investigating whether Amazon’s practices hurt local companies and consumers.
Some commentators, such as David Teece, a global business professor at UC Berkeley’s Haas School of Business, see little need for regulators to get involved. He argues that so long as the opportunity to compete is kept wide open, market forces will take care of dominance as smaller companies are more entrepreneurial and nimbler.4
Big Tech companies need to be viewed through a different lens to traditional ones since they operate in a fundamentally different way
Others are less convinced. Annabelle Gawer, Professor in the Digital Economy at the University of Surrey, while expressing her respect for Teece’s work, says Big Tech companies need to be viewed through a different lens to traditional ones since they operate in a fundamentally different way.
She argues platform companies such as Amazon, Facebook, Google and Apple have created network effects by building technologies that have acted as a magnet, towards which many third-party businesses and innovators, such as developers of apps and web services, gravitate.
“The opportunity for new entrants to compete is not wide open, because these companies have been able to erect high barriers to entry via exclusivity arrangements, denial of interoperability, self-preferencing, or the deliberate obstruction of users switching from one platform to the other,” says Gawer, an advisor to both EU and UK lawmakers.
Figure 2: Facebook's dominance of social media
Source: statcounter, shows % market share of browser usage based on page views
While Chinese companies could theoretically pose a threat at some point, this seems some way off. For the time being, the main competitive threat is from each other. As each firms’ tentacles get ever longer, they are starting to encroach on each other’s turf.
For example, privacy updates on Apple’s operating system will allow users of its iPhones to prevent apps from collecting their data. This has led to a dispute with Facebook, which relies on collecting user data to power effective advertising. Zuckerberg has complained the changes were driven by concerns over competition rather than privacy. However, even if one firm seriously damages another, the problem will most likely be exacerbated, not lessened, by increasing the concentration of power.
Big Tech, big problem
According to Atlantic Equities technology analyst James Cordwell, there is now a widespread feeling Big Tech is a big problem. He points to two of US President Joe Biden’s more high-profile appointments as evidence of what could be a decisive and seismic shift in attitudes within Washington.
Given what is going on in Washington, and indeed Europe and elsewhere, there’s a high probability changes are coming
In March, Biden hired Timothy Wu to the National Economic Council as special assistant to the president for technology and competition policy, a newly created position. Later that month, he nominated Lina Khan to become a commissioner at the Federal Trade Commission. Wu and Khan, both antitrust lawyers, are prominent critics of the way Big Tech companies abuse their market power.
“Given what is going on in Washington, and indeed Europe and elsewhere, there’s a high probability changes are coming. The challenge is defining their precise form and timing,” Cordwell says.
While turning up the heat on companies is one thing, taking action to limit their power meaningfully is another entirely. First, authorities need to decide whether to use antitrust legislation to try to foster more competition or instead accept dominant online platforms as natural monopolies or oligopolies. The latter would involve regulating them as such and limiting how much money they can make. Whichever method they choose, taming Big Tech will not be easy.
Cordwell believes the US, given its aversion to big government, would rather go down the former route, which would explain Biden’s appointments of Wu and Khan.
If this is true, legislation that better reflects the modern economy will be needed as current laws are unsuitable for addressing some of the challenges posed by Big Tech’s dominance.
As a law student at Yale University, Khan wrote a paper in 2017 entitled Amazon’s Antitrust Paradox, which captured significant attention. In it, she argued that gauging real competition in the twenty-first-century marketplace – especially in the case of online platforms – requires analysis of the underlying structure and dynamics of markets.5
Competition authorities have primarily constructed cases where they deem there to have been a loss of consumer welfare
In recent years, competition authorities in the US, and to a lesser extent the EU, have primarily constructed cases against companies where they deem there to have been a loss of consumer welfare. But judging Big Tech companies by this yardstick is problematic.
In her paper, Khan said Amazon engaged in predatory pricing behaviour to drive competitors such as Quidsi, at the time one of the world’s fastest growing e-commerce companies, out of business. Having achieved that goal, it then put prices up. While predatory pricing technically remains illegal, proving it is not easy. US courts require evidence the alleged predator would be able to raise prices and recoup its losses.
“In any case, the trouble with traditional competition approaches is these tech companies’ competitive advantages go beyond pricing power or market share," explains Aviva Investors’ senior ESG analyst Louise Piffaut.
She says much of the explanation for their success is that, partly through acquisitions, these companies have been able to create business ecosystems that have allowed them to bundle services together, thereby locking in their customers.
In a landmark antitrust case of 2001, the US government successfully argued that Microsoft had illegally maintained its monopoly position in the personal computer market primarily through the legal and technical restrictions it put on rival PC manufacturers and users to uninstall Internet Explorer and use other programs such as Netscape and Java.
Although cases could arguably be constructed against Apple, Alphabet, Amazon and Facebook on similar grounds, Piffaut believes they would not be easy to win.
Further complicating the picture, while the likes of Google and Facebook may at first glance appear to be handing out their services for free, the reality is less simple. As Piffaut points out, companies are reaping ever-bigger rewards by harvesting their customers’ data and monetising it with advertisers.
If you’re not paying for the product, then you are the product
Tristan Harris, one of the stars of the 2020 Netflix docudrama The Social Dilemma and former Google design ethicist, put it presciently: “If you’re not paying for the product, then you are the product.”
Some are calling for regulators to try to inject more competition by making it easier for consumers to take their data to rival companies. However, while data portability may sound like a good idea, there are doubts it would work in practice. After all, it would require extensive coordination by users of a platform. Equally, start-ups require access to large amounts of data at once, not piecemeal access to individual customers.
“People say data is the new oil and there is something good in that analogy because oil out of the ground is not much use; it's how it's refined that is important. Similarly, your data is next to useless to most people. It's how Facebook or Google use data that makes it valuable. I don’t think data portability necessarily solves anything,” Cordwell argues.
Conflict of interests
Furthermore, there is an inherent tension between antitrust and data privacy laws. For example, were regulators to look to reduce the power of Facebook by making it easier for a customer to take their data elsewhere, that could potentially invade the privacy of their network of friends.
“One of the unhelpful things around this debate is the issue is really one of antitrust and power, yet a lot of the conversation focuses on privacy. In some ways, those two are kind of pulling in opposite directions in terms of the remedies you would be putting in place,” says Cordwell.
The need to modernise antitrust laws to rein in Big Tech is one of the few areas where there appears to be bipartisan support
Even though some US politicians think dominant tech firms can help them stay ahead of China, the need to modernise antitrust laws to rein in Big Tech is one of the few areas where there appears to be bipartisan support. Few think the process will be quick, however.
In any case, it is unclear how much an updated rulebook will help given the difficulty regulators have in defining the markets in which companies operate.
“The fundamental problem is that while antitrust works very well when you have a clearly defined market and can measure market power in terms of price differential, the kind of competitive abuses Big Tech is being accused of are of a totally different nature, because price (on one side of the platform) for users is often set at zero,” Gawer says.
The fact these businesses are complex, hard to understand, and evolving rapidly, will make it doubly difficult to draft effective legislation that stands the test of time.
Although global regulators would ideally agree on a common roadmap, this looks unlikely. For example, Europe appears to want to regulate Big Tech companies as if they were public utilities. This is not surprising when one considers it has been employing antitrust legislation against big US tech firms for the past decade without much success.
“Europe mobilised antitrust ten years before the US, was not happy with the result, and said we have to take another tack,” says Gawer.
Following a probe that lasted seven years, Brussels in 2017 hit Google with a €2.4 billion fine for abusing its near monopoly in online search to “give illegal advantage” to its own shopping service. A year later it fined the firm €4.34 billion for abusing its power in imposing conditions on mobile phone manufacturers and operators. A third antitrust lawsuit resulted in a €1.49 billion fine in 2019 for online advertising abuse. Yet Gawer says the fines had little observable effect on the behaviour of the firm, which is appealing the latest two penalties.6
There is a feeling in Brussels that online platforms have become ‘too big to care
Thierry Breton, EU commissioner for the internal market, recently said: “There is a feeling in Brussels that online platforms have become ‘too big to care’.”7
With its DMA and DSA legislation, Europe is set to become something of a global test bed for data regulation and the growing power of tech companies. The former seeks to place new restraints on platforms. It will set out rules, so it is clear which activities are illegal without regulators having to launch lengthy antitrust investigations to prove damage to consumers. It will also seek the power to launch market investigations in different sectors of the economy where new gatekeeper platforms could potentially emerge. As for the DSA, it will introduce new obligations on platforms to disclose to regulators how their algorithms work, how decisions to remove content are taken, and the way advertisers target users.
In a report to the European Parliament, of which she was the main author, Gawer said while the DSA and DMA draft legislation were sensible starting places, efforts to apply a single, one-size-fits-all code of conduct across the big platforms were misguided.8
Whether the legislation can help curb the power of Big Tech, as and when it comes into force, is questionable. According to Carmelo Cennamo, professor of strategy and entrepreneurship at Copenhagen Business School, and D. Daniel Sokol, professor of law at the University of Florida, the new rules may do little to promote competition and innovation, and could even stifle them.
“The EU is a cautionary tale of the unintended consequences of applying broad regulatory fixes to a rapidly evolving landscape,” they wrote in an article for the Harvard Business Review.9
In 2018, Europe introduced what many consider to be the strictest and most far-reaching data protection and privacy laws ever passed. The General Data Protection Regulation imposes tight data protection requirements and heavy penalties for non-compliance for any business around the world that collects or processes EU resident data. Other jurisdictions around the world are taking cues from it to develop their own frameworks.
GDPR has created a higher barrier to entry for smaller platforms
While that is forcing major changes in the way companies handle data, there are doubts the legislation will hinder the biggest companies. Indeed, one of its adverse consequences could be that it strengthens their position.
“GDPR really impacts your ability to follow people about and cross-pollinate data between platforms. In doing so it has created a higher barrier to entry for smaller platforms,” says Piffaut.
Giles Parkinson, global equities portfolio manager Aviva Investors, agrees. “I see it benefitting the bigger platforms over smaller publishers. You’ve made a mental permission for them to use your data as you’re giving them your most intimate secrets anyway,” he argues.
Breton believes some Big Tech companies might need to be split up if they continually violate the spirit of the rules.10 Any efforts by Europe to break up a big US tech company could provoke a backlash in Washington were they to be seen as an effort to advantage European companies, or likely to increase the relative power of a Chinese rival.
Then again, the threat of breaking companies up is coming from the other side of the Atlantic too. In December 2020, the Federal Trade Commission (FTC), the US competition watchdog, along with the attorneys general of 46 states, the District of Columbia, and Guam, sued Facebook, alleging it is “illegally maintaining its personal social networking monopoly through a years-long course of anticompetitive conduct”. It says it may force it to divest assets, including Instagram and WhatsApp.11
On June 28 a federal court dismissed the suits, saying prosecutors had failed to provide a good enough explanation for how they came to the conclusion that Facebook controls more than 60 per cent of the social networking market. Prosecutors have up to 30 days to file new antitrust complaints addressing the judge’s concerns.
I see the rhetoric of breaking up companies as a bit of theatre designed to catch their attention
If they do, Cordwell is sceptical they will win. “It’s quite hard to argue Facebook has a monopoly. The FTC is trying to do it by defining the market in quite narrow terms but whether that can legally be argued I think is a real sticking point,” he says.
Notwithstanding Breton’s remarks, Gawer believes it is highly unlikely Europe will try to break up Facebook, or any of the other Big Tech companies. “I see the rhetoric of breaking up companies as a bit of theatre designed to catch their attention, but I don’t envisage a complete bust up,” she says.
That said, whereas in the past these firms have all too easily been allowed to cement their dominant position by acquiring potential rivals, that will be extremely difficult, if not impossible, in future.
“These companies have gotten away with a variety of acquisitions they won't be able to get away with any longer,” Gawer says.
At Khan’s confirmation hearing before the US Senate in April, Democrat Senator Amy Klobuchar, who is pushing forward legislation that would effectively bar the biggest firms from using mergers to get any larger, said: “For too long mergers have gone unchallenged”.12 Khan herself called for greater vigilance, adding “in hindsight there’s a growing sense that some of those merger reviews were a missed opportunity”.13
But does this matter? As these companies now boast such dominant market positions, the inability to take out smaller would-be rivals is unlikely to be particularly troubling for now.
A taxing problem
Competition authorities are not the only ones turning up the heat on Big Tech; tax authorities are too. For years, most of the US tech giants have been paying very low levels of taxation around the world, despite eye-watering market valuations and growth rates.
According to a 2019 report from UK not-for-profit company Fair Tax Foundation Limited, between 2010 and 2019, Google, Amazon, Apple, Facebook, Microsoft and Netflix combined had avoided paying $100 billion in taxes they had provisioned for.14
Many countries will be looking for new sources of tax to dig themselves out of their fiscal hole
With government finances having taken a battering from COVID-19, many countries will be looking for new sources of tax to dig themselves out of their fiscal hole. Already under fire, the fact these firms have been some of the biggest winners from the pandemic will make them an even more tempting target.
“These tech companies have made quite a few political enemies by playing quite fast and loose with the rules,” says Cordwell.
When Facebook recently announced it was paying £15.8 million tax in the UK, where its sales total £1.3 billion, politicians and others were quick to vent their fury. “Absolutely outrageous that Facebook's UK tax bill is 0.62 per cent of their revenue here,” tweeted Margaret Hodge, Labour MP and former chairman of the public accounts committee.15
The low rates of tax paid by these tech giants partially reflects the kind of creative tax practices employed by virtually all multinational companies. Legions of tax accountants and lawyers are employed to exploit various loopholes and stay one step ahead of the relevant tax authorities.
But it is also the by-product of an outdated international tax system that pre-dates the globalisation and digital eras. The nature of their businesses makes it almost impossible to identify where economic activity took place, enabling profits to be shifted to popular tax havens such as Bermuda, Ireland, Luxembourg and the Netherlands.
Global agreement in sight
To try to address these issues, finance ministers from the Group of Seven rich nations on June 5 agreed what was described by The Economist as the biggest overhaul of corporate taxation in a century. They hope it will form the basis of a worldwide deal.
Under the first of the agreement’s two pillars, global firms with at least a ten per cent profit margin would see 20 per cent of any profit above that 10 per cent margin reallocated and then subjected to tax in the countries in which they operate. The aim is to stymie tech firms’ ability to shift profits to low-tax jurisdictions.
The biggest overhaul of corporate taxation in a century
Under the second pillar, ministers agreed to back a global minimum corporate tax rate of at least 15 per cent. The aim here is to end what US Treasury Secretary Janet Yellen has described as a “30-year race to the bottom” on corporation tax rates, as countries competed to lure multinationals.16
While the accord has been widely welcomed, much still needs to be ironed out – including the metrics that will determine how and to which multinational companies the tax will be applied.
A G20 meeting scheduled for Venice in July will see whether the G7 accord gets broad support from the world’s biggest developing and developing countries, although even if it does it is far from clear national legislatures such as the US Congress will approve the proposals.
In any case, it seems unlikely to significantly dent firms’ profitability. According to the OECD, 40 per cent of multinationals’ overseas profits are shifted to havens, which it estimates costs exchequers up to $240 billion a year. The Economist says while the combined reforms might raise $50-80 billion, that is meagre beside multinationals’ $6 trillion of global annual profits.
Perhaps tellingly, Amazon, Facebook and Google were among those to welcome the June 5 announcement.
A malign influence
Some of the big US technology companies such as Facebook and Alphabet, as well as Twitter, are facing calls for greater regulatory oversight for another reason: mounting concern over data privacy and the malign influence of the internet in general, and social media in particular.
Social media companies are said to be playing a big part in the worsening societal discord
In March 2018, news broke that British political consultancy Cambridge Analytica had acquired personal data on 87 million Facebook users without their permission. The data was said to have been used to try to sway the outcome of the 2016 US Presidential election.
Meanwhile, recent years have seen a proliferation of ‘fake news’ and conspiracy theories. In helping spread this kind of disinformation, social media companies are said to be playing a big part in the worsening societal discord seen across the West, thereby threatening to undermine democratic processes.
Perhaps most worrying of all, rates of self-harm and suicide are soaring. US suicide rates among ten to 24-year olds, having previously shown no discernible trend, soared more than 50 per cent in the decade to 2018.17
Figure 3: Rising US youth suicide
Note: Deaths per 100,000 population persons aged 10-24. Source: U.S. Department of Health and Human Services, as at September 11, 2020
Meanwhile, incidents of self-harm among girls aged ten to 14 climbed even faster, increasing 18.8 per cent a year between 2009 and 2015.18 Social media and internet companies are widely blamed for doing too little to take down abusive content.
Both Zuckerberg and Twitter chief Jack Dorsey have themselves called for more regulation of harmful online content, arguing it is not for companies like theirs to decide what counts as legitimate free speech. However, that seems unlikely to placate regulators.
A hypothetical antitrust dragon?
With authorities threatening the biggest shake-up in competition, tax and data policy in a generation, one might have expected investors to be concerned. Instead, the near vertical rally in share prices shows little sign of abating. As of June 29, Alphabet and Facebook shares had delivered stunning year-to-date gains of 40 and 30 per cent respectively with Amazon stock up 6 per cent and Apple up 0.2 per cent.19
However, some observers caution against reading too much into what share prices currently imply in terms of the threat of regulatory intervention.
“The speed at which dollars are shifting from offline to online is accelerating. At the same time, these firms are being helped by the shift to streaming, which means traditional media advertising is in flames. The market is asking itself: Do I really want to imagine some hypothetical antitrust dragon in five years’ time and miss out on this opportunity? Not really,” Parkinson says.
The 2022 forecast earnings for Facebook suggest the shares are being impacted to some degree
Moreover, as Cordwell argues, while there may be complacency, it would be wrong to take recent share price gains to mean the market is entirely unconcerned about the threat of regulatory intervention.
“There’s a belief these things are long and complex, nothing is going to happen in the next year, and the market tends to look no further ahead than that. But when I look at 2022 forecast earnings for Facebook, it’s on the same valuation as the overall market. Given the growth it’s delivering, that looks too cheap, suggesting the shares are being impacted to some degree,” he says.
As for Alphabet, it is far from clear regulatory intervention would be a bad thing for its share price anyway.
“There’s a widespread feeling Google is worth more on a sum-of-the-parts basis than as an integrated business. Because it was so content with Google Search being so hyper profitable, it hasn’t monetised businesses like YouTube nearly as well as it should have,” Parkinson says.
Cordwell, who largely agrees, says Amazon is the one company where the market could be underestimating the threat of action. “These appointees to the Biden administration could well change the way people think about antitrust. It could start to come onto the agenda in a way that isn't currently envisaged,” he says.
Many believe the complexity of their businesses has allowed Big Tech companies to exploit wiggle room, undermine the spirit of the rulebooks and run rings around regulators, famously illustrated by a memorable altercation when Zuckerberg appeared before Congress in 2018. Asked by 84-year-old Senator Orrin Hatch how Facebook sustained a business model “in which users don’t pay for your service”, Zuckerberg responded: “Senator, we run ads”, before breaking into a smirk.20
Few dispute the need for at least some level of competition in healthy economies
“When I was there, I always felt like fundamentally it was a force for good. I don’t know if I feel that way anymore,” Alex Roetter, formerly Twitter’s senior vice president of engineering, told The Social Dilemma viewers.
Perfect competition is a myth only found in economic textbooks. However, few dispute the need for at least some level of competition in healthy economies. This implies the days of Big Tech getting such an easy ride – as Zuckerberg did in 2018 – look to be over. But just how much their influence and dominance can be reined in remains to be seen.