The concentration of economic power at the beginning of the 20th century had antitrust and the regulation of public utility services as a political response. The debate of the 21st century revolves around answering a question: how to stop the domination exercised by digital platforms, whose competitive strategies focus on the use of personal data on a large scale and powerful artificial intelligence tools? Some regulation projects are underway in several jurisdictions, with the European Union (EU) at the forefront.
The EU has recently enacted two laws regulating digital platforms: the Digital Services Act (DSA), which entered into force in November 2022, and the Digital Markets Act (DMA), which entered into force on May 1 of this year, establishing in advance (ex-ante) conduct prohibited to so-called Gatekeepers.
The DSA, although having a much broader scope, served as inspiration for PL 2.630/2020 (“PL das Fake News”). The DMA inspired Bill 2768/2022, which targets platforms considered to have essential access control power, pursuant to ANATEL regulations.
In the regulatory agenda around the world, artificial intelligence (AI) is also in focus. In the EU, in April 2021, the AI Act was proposed, with an approach based on the risk that AI systems can generate. In Brazil, Bill 2338/23 creates the regulatory framework for Artificial Intelligence, providing for greater transparency on the use and functioning of AI systems.
The current question is about which body should regulate digital markets. The digital economy has brought significant challenges in the spheres of data protection, consumer protection and competition. Certainly, a future supervisory entity should combine competences in these areas, which already have their own legislation and regulatory bodies in Brazil. However, in order to continue moving forward, we need to innovate in institutional design.
A possible solution requires the transversal mobilization of the technical, tooling and procedural capacity already in operation, transferred to a distinguished entity, composed of a group of technicians and managers working in regulatory agencies, CADE, SENACON, ANPD and BACEN (without excluding other agents interested public and future contestants).
This group of technicians (experienced in regulation and/or defense of competition, consumer and data protection and trained, by the new initiative, in data science, behavioral science and even computer science) would be responsible for analyzing complaints and systematic follow-up of markets. The technical notes prepared in the form of opinions would be sent to a collegiate composed of representatives of the authorities (ANPD, ANATEL, CADE, SENACON and eventually BACEN, in view of the advancement of platforms in financial services, representative of the Public Ministry (diffuse rights) , representative of a consumer protection entity and representative of a non-profit digital market studies institute. This body of representatives, from society and the State, would decide on the forwarding of measures, such as determining an order to do or not to do that, if if not complied with, it would imply a referral to the authority indicated by the collegiate (according to the type of infraction), suggesting the imposition of a penalty, as well as a substantiated complaint to the MPF, all with wide knowledge of society.
This innovative institutional design – which would not imply an increase in the state machine or a significant increase in funding expenses (since society representatives would participate in the collegiate sessions without remuneration, receiving only occasional coverage of travel costs) – would manage to apply a “Digital Platforms Law”, which would include measures such as those provided for in PL 2768/2022, equivalent to those defined in the European DMA, which establishes the rules of conduct for platforms holding essential access control power, in order to protect competition and the consumer in the digital age, without prejudice to innovation.