May 20, 2021
Consumer protection law is vital for ensuring that market-based economies work in the economic interest of consumers as well as businesses, and thus to the benefit of civil society. This is the case for online markets just as it is for offline markets. However, despite broad consensus on these points, too little has been done to ensure that the various standards applicable in offline markets are sufficient or adequate to guarantee efficiency and fairness in online markets. This paper outlines eleven key features of online markets that might necessitate standards additional to or different from those that are applicable offline, and provides a menu of possible policies in relation to each. Many of these are general to all online markets, but some are specific to the largest digital platfroms. Many if not most of our policy proposals could be enacted through minor changes to existing law or regulation or through decisional law interpreting existing legislation. Some have already been implemented in some jurisdictions. What is needed in all jurisdictions, however, is a regulator or regulators with sufficient expertise around technical issues such as A/B testing and algorithmic decision-making to understand, anticipate, and remedy the myriad ways that online firms can disadvantage consumers.