The practice of self-preferencing by dominant online platforms, wherein they favor their own products and services, is becoming a focal point of regulatory attention in major jurisdictions, including South Korea and the European Union (EU). Despite th...
The practice of self-preferencing by dominant online platforms, wherein they favor their own products and services, is becoming a focal point of regulatory attention in major jurisdictions, including South Korea and the European Union (EU). Despite these regulatory efforts, South Korea lacks a clear consensus on the definition and scope of self-preferencing as a regulated behavior. The normative
underpinnings for regulating self-preferencing are still evolving, leading to confusion and increased social costs due to regulatory uncertainty. This paper aims to develop a normative concept of self-preferencing, examine the theories underpinning its regulation, and analyze legal precedents and enforcement cases from the EU, the United States, and South Korea to derive a suitable regulatory framework for South Korea.
Self-preferencing can manifest in various ways, raising concerns about excessively broad regulatory scopes. According to the EU's Digital Markets Act, the proposed American Innovation and Choice Online Act, and the Korea Fair Trade Commission's guidelines, self-preferencing involves a dominant platform favoring its ownproducts over those of its business users.
The necessity for self-preferencing regulation stems from concerns about increased market dominance and the need for non-discrimination obligations. While platforms can potentially expandtheir market dominance through self-preferencing, South Koreanplatforms may not yet pose significant concerns in terms of economic concentration. However, certain platforms play crucial roles, andself-preferencing could lead to exclusionary practices targetingcompetitors.
If self-preferencing warrants regulation, a new type of abuse couldbe established in the law. However, before creating new rules, it is essential to consider regulating self-preferencing within existing competition laws. Given that self-preferencing often deviates from traditional forms of anti competitive conduct, it could be regulated under non-discrimination provisions.
When regulating self-preferencing, proof of anti competitive intent, purpose, and effect is required. The United States considers the intent related to technological improvement and innovation, while the EU evaluates efficiency and consumer welfare improvements. South Korea should consider whether self-preferencing can enhance efficiency and consumer welfare through innovation when assessing competitive harm. This balanced approach can protect competition while fostering innovation and dynamism in the market.
keywords : online platform, self-preferencing, neutrality, differential treatment
Student Number : 2017-36765