Digital market and its adequacy of merger assessment in Indonesian business competition law

Abstract

Purpose

This study aims to analyze the development of digital market characteristics particularly focusing on how the strategic choices of platforms are not fully reflected in pricing. In addition, the implications for the development of theories of harm are investigated to explore the necessity of a relevant market definition in assessing infringement and evaluating the adequacy of Indonesian competition law.

Design/methodology/approach

This study is a legal analysis that uses statutory approaches, cases, comparative law and the development of theories of harm in digital mergers. The case approach is conducted by analyzing three cases decided by the Indonesia Business Competition Supervisory Commission. This approach provides insight into the response of Komisi Pengawas Persaingan Usaha concerning the merger and acquisition cases in the digital era as well as the provision of different analyses in conventional markets. However, competition can be potentially damaged in digital markets and a comparative law approach is taken by analyzing digital merger cases decided by authorities in other countries.

Findings

Results reveal that the digital market has created a “relevant market” that is challenging and blurred due to multi-sided network effects and consumer data usage characteristics. Platform-based enterprises’ prices fluctuate due to the digital market’s network effect and consumer data statistics. Smartphone prices depend on the number of apps and consumer data. Neoclassical theory focusing on product markets and location applied in Indonesia must be revised to establish a relevant digital economy market. To evaluate digital mergers, new harm theories are needed. The merger should also protect consumer data. Law Number 27 of 2022 on Personal Data Protection and Government Regulation on the Implementation of Electronic Systems and Transactions protects online consumers, a basic step in due diligence for digital mergers. The Indonesian Government should promptly strengthen the notion of “relevant markets” in the digital economy, which could lead to fair business competition violations like big data control. Notify partners or digital merger participants of the accessibility of sensitive data like transaction history and user location.

Originality/value

The development of digital market characteristics has implications for developing theories of harm in digital markets. Indonesian competition law needs to develop such theories of harm to analyze the potential for anticompetitive digital mergers in the digital economy era.