Re-orientating Digital Platform Regulation in the US and Australia: Treading Water or Experimenting?

This paper analyses the re-orientation of digital platform regulation in the United States and Australia, including through legislative proposals to deal with platform power as well as enforcement cases against digital platforms. It argues that new initiatives to address platform power in these jurisdictions follow a common emergent template, involving measures focused on identifying conduct violations for platforms specifically designated on the basis of structural criteria including market share, size and concentration. The paper argues that such initiatives are unlikely to provide a magic bullet for addressing the problem of the concentration of economic or political power by the digital behemoths. This is because the emergent regulatory templates are not sensitive to the root causes of the emergence of digital platforms as a model of production and exchange, nor do they seek to address the remedial problems of traditional legal competition enforcement. More promising approaches would seek to resolve specific problems that arise in the platform ecology, for both collaborating firms and final users, through innovative remedial design based on the experimentalist disciplines of monitoring and recursive adjustment.