Making an antitrust case in opposition to world tech giants
Antitrust law against global technology giants
Monday, February 22, 2021
With CATHY MPUTHIA
- Kenya has about 16 percent of its population on Facebook, according to a report filed last year.
- According to the same report, Kenya is the second largest Twitter user in Africa after South Africa.
Most global tech companies, including Facebook, Microsoft, Google, Zoom, and Netflix, have consumers in Kenya.
Kenya has about 16 percent of its population on Facebook, according to a report filed last year. According to the same report, Kenya is the second largest Twitter user in Africa after South Africa. The determination was made after a compilation of the number of tweets per country.
Last year WhatsApp users raised concerns about the alleged intention to share data with Facebook. Many WhatsApp users felt that the company’s action was one-sided and unfair, but there wasn’t much they could do about it. Either you have accepted the changes by accepting the General Terms and Conditions or you have been denied access to services.
The company later calmed the nerves by issuing a clarification that users shouldn’t have to worry about the confidentiality of their messages on the two platforms.
Facebook is undoubtedly the world’s largest social media company and has achieved what is known as a dominant position in most countries. The same is true for most global technology giants. A dominant position exists when a particular company offers more than a certain percentage of goods or services in the target market. Dominant positions are regulated to protect consumers from abuse and unfair trading conditions.
In Kenya, protection from dominant positions is provided in Sections 24 and 25 of the Competition Act. In Kenya, a dominant position occurs when a company captures more than 50 percent of the market. The global technology companies have therefore established a dominant position in the Kenyan market.
Ideally, consumers should be protected by the state from unfair trading conditions by such companies. However, it is debatable whether the rumored changes to WhatsApp in Kenya constitute unfair terms. A company should be free to offer its services on terms it deems appropriate. It would therefore be a challenge for consumers to prove the injustice in the new terms.
According to the Kenyan competition law, there is an abuse of dominance if the supplier imposes unfair trading conditions and price fluctuations. Can a case of abuse of dominance against a global tech company in Kenya be sustained? Theoretically yes. However, for the reasons given above, this rarely happens. In the meantime, anti-trust measures are intended to promote competition for the benefit of consumers. An anti-trust measure does not necessarily have to include aspects of abuse of dominance.
There are plenty of cartel decisions against dominant companies, especially in the technology sector. The US has a wealth of case law in this area. Here are some highlights of antitrust litigation against technology companies that could shed light on how similar antitrust proceedings in Kenya can be resolved.
Last year, India dismissed an antitrust lawsuit against Facebook. In Germany, however, it turned out that Facebook had abused its dominance by incorrectly combining the data it had collected. The German position was that Facebook should obtain voluntary consumer consent before using data. I suppose that was done.
In one yet to be resolved case, the United States versus Google, an antitrust lawsuit was filed against a deal setting Google as the default search engine for Apple and Samsung to use.
In another very technical antitrust lawsuit, USA against Microsoft (2001), a lawsuit was filed against Microsoft for alleged PC monopoly. Some measures were suggested in the judgment, including that Microsoft share its interface with the application program with third parties.