| Summary: | Digital markets now fundamentally intertwine with our social and economic lives. International enforcement actions, the US and EU Google cases in particular, demonstrate how from a behavioural economic perspective digital platforms may be beginning to implicate antitrust’s two most fundamental doctrinal components—conduct and market power—in nuanced ways. In short, the regulatory and policy landscape showcases that we may be moving closer towards an antitrust world whereby firms can manipulate consumers’ psychological shortcomings to foreclose competition – a new form of nefarious conduct that might appropriately be termed “cognitive foreclosure”. And because consumers’ cognitive anomalies are the drivers behind this new form of potentially anti-competitive conduct, consumers simultaneously are the potential solution. The behavioural deviation from perfect competition, then, would need to be “substantial” and “sustainable” such that consumers cannot short-circuit these emerging market failures themselves. This Thesis proffers digital platform markets as one context in which such a deviation may be expected to occur and hence warrant antitrust intervention.
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