Abuse Of Dominant Market Position In "Big Data-Enabled Price Discrimination"

With the advancement of Internet technology,the digital revolution is ushering in a data-driven era with algorithms at its core.“Big data-enabled price discrimination” is widely found in the fields of transportation,e-ticketing,online shopping,online tourism,and other transactions,and has been causing controversy in recent years.Unfortunately,the current legislation,judicial and law enforcement status of “Big data-enabled price discrimination” is still in a very imperfect state.The implementation of “B Big dataenabled price discrimination” is divided into three steps: first,the platform operator collects a large amount of consumer data and draws a personal "consumer portrait" of the user;second,based on the collected consumer data,the platform operator uses algorithmic technology to predict the consumer’s highest willingness to pay,i.e.WTP;third,price discrimination is applied to consumers based on WTP.The “Big dataenabled price discrimination” should be characterized as "price discrimination" and may be regulated by the "differential treatment" clause in the abuse of dominant market position.First,the new characteristics of the bilateral markets in which Internet companies operate in the era of big data,such as cross-network externalities and lock-in effects,make it difficult to apply the traditional ways of defining the relevant markets,including demand substitution analysis and SSNIP.The more dimensions of price discrimination against consumers by algorithms,the more relevant markets there are,and antitrust enforcement agencies are faced with the challenge of accurately defining relevant markets in such many markets.Facing the dilemma of defining relevant markets,the improvement of SSNIP test method and the replacement of SSNIP test method by SSNDQ test method can be considered.At the same time,the number of users,the share of users,and the difficulty of obtaining data all contribute to the fact that the traditional share criteria for determining market dominance are no longer fully applicable.Some scholars have suggested that operators with a relatively dominant position should also be included in the scope of antitrust regulation.In this regard,it is necessary to replace the traditional market share standard with data dominance,start from the data itself,put aside the appearance and go deeper into the substance,and conduct specific analysis.Secondly,the legality determination of the misuse of “Big data-enabled price discrimination” is facing difficulties.To begin with,the criteria for determining "identical conditions," "identical transactions," and "differential treatment" are ambiguous,making it difficult to distinguish between normal pricing behavior and price discrimination.The aggregation of platform-related product functionalities also makes it difficult to differentiate clearly,leading to further difficulties in determination.To address this issue,one can consider requiring operators to disclose the intended use of data.Moreover,“Big data-enabled price discrimination” may promote "algorithm collusion," increase market entry barriers,deepen consumer’s sense of unfairness,and produce anti-competitive effects.The difficulty in determining anti-competitive effects lies in the consideration of exclusive and exploitative effects,and exploitative effects should also be considered as an angle to judge anti-competitive effects.Meanwhile,it is also possible to consider using counterfactual analysis to compare the market competition level before and after the implementation of “Big data-enabled price discrimination” to judge the existence of anti-competitive effects.Finally,the "justification defense" is also abused by some platform operators.In this regard,the reasonableness of the "justification defense" can be determined by comparing the positive and negative effects of the platform operator’s behavior from the perspective of welfare economics.The positive effect of “Big data-enabled price discrimination” refers to the improvement of total social welfare,while the negative effect refers to the impairment of consumer welfare,so the justification of “Big dataenabled price discrimination” can be judged by comparing the two by taking the consumer welfare standard as the center.At the same time,when judging the positive and negative effects,it is also necessary to consider the "distribution effect" of consumer welfare among the groups with high willingness to pay and those with low willingness to pay and judge the standard of "justification defense" from the perspective of fairness and reasonableness.