On February 10th, 2022, Russia's FAS found the YouTube platform guilty of abusing its dominant position.The decision of the FAS Russia regarding YouTube is unprecedented in terms of world practice in the sense that this is the first time that the antimonopoly authority has held a digital platform liable for "sudden blocking and deletion of user accounts". The FAS Russia found that the rules related to the formation, suspension, blocking of accounts and the circulation of user content on Youtube are non-transparent, biased and unpredictable.
Russia's FAS decision against YouTube is unprecedented in terms of global practice. It is the first time an antimonopoly authority has held a digital platform liable for "sudden blocking and deletion of user accounts." FAS Russia found that the rules related to the formation, suspension, blocking of accounts and handling of user content on Youtube are non-transparent, biased and unpredictable.
Who has already been fined for lack of transparency?
Non-transparent platform rules have been the subject of several antitrust cases, but none of those cases have involved blocking user accounts and content on the YouTube platform. In 2019, the French competition authority fined Google €150 million, accusing the company of abusing its dominant position — the rules for using the Google Ads advertising platform and the procedure for suspending user accounts were not transparent and were applied unfairly.
Similar arguments about the opacity of the rules for using the social network are seen in the famous Facebook case brought by the German antitrust authority in 2016. Facebook provided users with insufficient information about its privacy policy and did not leave them the opportunity to give the most informed consent to collect and process this data.
The transparency of digital platforms' rules and policies has increasingly come under the focus of antitrust regulators and has been the subject of debate. In addition to the biased removal of YouTube and Google Ads user accounts, the closeness and unpredictability of the rules for dynamic pricing of taxis and courier delivery are called into question. The FAS has already demanded that the largest cab aggregators (Yandex.Taxi, DiDi, Citimobile and Gett) provide explanations of the procedure for pricing rides. It can be expected that the problem of non-transparent rules for dynamic pricing by cab and delivery aggregators will not go away from the agenda of antimonopoly authorities in the coming years either.
Time to talk about responsibilities
While antitrust practice regarding the transparency of digital platforms' rules has just begun to emerge, antitrust authorities in some countries are already suggesting that establishing transparent and understandable rules of use is an essential duty of digital platforms to maintain healthy competition in the marketplace. Such duties for digital platforms have been established in Japan, China, and are proposed in major antitrust reform projects in the United States and the EU. One of the five principles for digital platforms established by the FAS of Russia also contains a prohibition on expansive and ambiguous wording in the rules of digital platforms.
The importance of such initiatives is clear — digital platforms provide providers of goods, services or, as in the case of YouTube, content with important (sometimes critical) promotional infrastructure. At the same time, with powerful market power — that is, the ability to determine market conditions — platforms can dictate their terms to suppliers that depend on them, which are often more convenient and profitable for the platform. The growing economic and social-political influence of digital platforms requires them to perform additional duties to treat other market participants fairly, even within the platform itself. In this sense, the decision of FAS Russia only confirms and strengthens this logic.
Authors: Daria Kotova and Ekaterina Erofeeva, experts of the BRICS Competition Law and Policy Centre.
