Don't make me do it! CMA threatens direct action against Google and Facebook if the UK Government doesn’t act

 Two things are no secret: the CMA is no friend to Big Tech, but the CMA also considers additional powers are necessary to fully address Big Tech's perceived harms to competition and beyond. In a speech we wrote on just last week, the CMA’s CEO Dr Andrea Coscelli said that regulation is necessary because “existing tools are clearly not sufficient to address these potential harms”.

But regulation requires primary legislation, which requires legislative capacity and appetite. Legislative capacity is in short supply due to the dual pressures of the Covid-19 crisis, and the looming end to the Brexit transition period. Perhaps even more critically, there is a question mark over legislative appetite for a “world leading” (i.e. the world's harshest) regulatory regime for (almost exclusively) US-based Big Tech, given the implications it could have for the UK-US trade relationship at this critical moment. The CMA’s Digital Taskforce is due to report to the Government at the end of 2020, but it’s far from certain its recommendations – especially any that call for fundamental intervention in Facebook and Google’s business models – will become law.

In an interview with the Financial Times this week, Dr Coscelli has said that if the UK Government doesn’t take action within a year of the CMA’s Digital Taskforce Report, he’ll do it himself. Dr Coscelli described as “Plan B” (Plan A being legislation) direct action against Google and Facebook through a “combination of antitrust and market investigation references”.

So how credible is the threat? It is of course entirely credible that the CMA will want to use its existing powers to their fullest extent in the absence of regulation (and even alongside regulation in some cases). But – as the CMA itself identified in its Digital Advertising Market Study – there are significant challenges: the reason the CMA proposed a regulatory regime was to achieve things the existing competition regime cannot achieve, either at all, or as comprehensively or fast.

Antitrust investigations are notoriously slow, which has been viewed as one of the big limitations of existing powers: fast moving tech markets have simply moved on by the time regulators get around to issuing a decision. But even if speed could be overcome as a hurdle, the truly global nature of the Big Tech platforms’ businesses appears an almost unassailable challenge. The most extreme remedies of break up – which the CMA does have the power to impose under its Market Investigation Regime – have only been contemplated before for businesses based in the UK. Any attempt for such a “big bang” move would be riddled with legal and practical challenges.

In reality, the only way for the CMA to have a truly significant impact would be to work alongside other regulators, most critically the European Commission. Here, there are some options the CMA might pursue if it can persuade its peer agencies to get on board. Notably, Google’s alleged self-preferencing in the so-called ad tech stack was highlighted in the CMA’s Digital Advertising Market Study and would represent a case which (a) may have some appeal to the European Commission and (b) has a remedy (cease discrimination) that doesn’t require the UK Government to try and order separation of Google. But any such cases would be much narrower in scope than what the CMA has clearly said it deems necessary.

As Christian Ahlborn (Linklaters Global Head of Competition & Antitrust) told the Financial Times, “ultimately there is a need for regulation because the existing competition tools are second-best unless the CMA attempts something narrow and targeted… Broad investigations into social media and digital advertising would be really ambitious and fraught with risk.” In short, the CMA’s resolve is firm, but it’s clear that for the CMA, pushing the competition system to straining or even breaking point is a distant second best to regulation.