Goldilocks and the three laws – Competition law, the Digital Markets Act, and the Digital Service Act: Regulation of online safety

This article undertakes an analysis of the individual goals of the competition rules, the Digital Service Act (DSA) and Digital Markets Act (DMA) and assesses whether as a trio they can cooperate to successfully develop online safety. With the adoption of the DSA and DMA, a necessary shift has taken place in the regulation of online markets, from self-regulation to coregulation. However, as is argued in the article, the competition rules will need to follow suit in this shift to avoid conflicts with the goals of the DMA and DSA. The article demonstrates how the goals of the DMA and DSA are carefully based on core competition law principles, therefore allowing for alignment of the three legislative domains. Yet the main obstacle to ensure alignment seems to be the consumer welfare approach adopted and heavily relied upon by the Commission over the last two decades. This approach restricts a broader application of the competition rules to socio-economic issues such as online safety and appears at odds with the ‘can do attitude’ that the Commission has regarding the strength of the competition rules. This attitude has supported the liberation of certain industries and allowed for second-tier regulation of other areas of law, indicating that the competition rules can be a useful tool to online safety. With careful tweaking of the competition law goals to allow for the consideration of broader socioeconomic issues, this article argues that cooperation between the DSA, DMA and the competition rules in the online market may be successful.