Competition Law and the Attention Economy

1. Introduction

The attention economy describes markets in which firms compete for users' limited attention and monetize that attention through advertising, subscriptions, transactions, data collection, or other commercial models.

Traditional competition law often focuses on price, output and market share. The attention economy complicates this framework because many important digital services are offered to consumers at a zero monetary price. Instead, users provide attention, behavioural data, engagement, or advertising value.

Examples include:

search engines;

social-media platforms;

video-sharing services;

online news platforms;

streaming services;

app stores;

digital advertising platforms;

recommendation systems;

online marketplaces;

gaming platforms.

Competition law therefore has to consider whether a dominant undertaking can exploit control over user attention, data, algorithms and advertising access to exclude rivals.

2. Meaning of the Attention Economy

The attention economy is based on the proposition that human attention is scarce.

A platform may compete for:

users → attention → engagement → data → advertising revenue

For example, a social-media platform may provide a service without charging users. Its economic value can instead arise from:

advertising;

targeted marketing;

data analytics;

subscriptions;

commissions;

transactions generated through user engagement.

Consequently, competition between platforms can concern not merely price but also:

quality;

privacy;

user experience;

innovation;

recommendation systems;

advertising load;

interoperability;

switching costs.

3. Why Competition Law Is Important

Competition law becomes relevant when an undertaking obtains substantial market power and uses that position to restrict competition.

Possible concerns include:

1. Self-preferencing

A dominant platform gives preferential treatment to its own content or services.

2. Data advantages

A dominant platform uses accumulated user data to make entry more difficult.

3. Exclusivity

Content providers are prevented from distributing their products through competing platforms.

4. Tying

Users are required or strongly incentivized to use another service.

5. Advertising dominance

A platform controls both users and advertising infrastructure.

6. Algorithmic discrimination

A platform's ranking algorithm systematically disadvantages competing businesses.

7. Acquisitions

A dominant platform acquires emerging competitors before they become substantial competitive threats.

4. Relevant Markets in the Attention Economy

Market definition becomes particularly complicated because traditional price-based analysis may be inadequate.

A platform might simultaneously operate in several markets:

User-facing market

For example:

social-networking services.

Advertising market

For example:

online display advertising.

Data market

For example:

collection and processing of behavioural data.

Content market

For example:

online video or news.

Intermediation market

For example:

connecting advertisers with consumers.

The same company can therefore possess market power in one market and use it to strengthen its position in another.

5. Zero-Price Markets

A service can be economically valuable even when consumers pay nothing.

Traditional competition analysis may ask:

"How much does the consumer pay?"

In an attention economy, additional questions include:

How much data does the consumer provide?

How much advertising does the consumer receive?

How much control does the platform exercise over attention?

How difficult is it to switch?

What happens to quality?

How much choice exists?

How much time do users spend on the platform?

Therefore, zero monetary price does not mean zero competition concerns.

6. Quality as a Parameter of Competition

Where monetary prices are zero, quality can become an important competitive parameter.

Quality can include:

privacy;

security;

advertising intensity;

reliability;

content diversity;

recommendation quality;

speed;

transparency;

user control.

A dominant platform could theoretically reduce quality while maintaining a zero monetary price.

For example, it could increase:

advertising frequency;

behavioural tracking;

intrusive personalization.

Competition law can therefore examine non-price competition.

7. Network Effects

Attention markets frequently exhibit network effects.

A social platform becomes more valuable when more people use it.

This can create:

more users → more content → more engagement → more advertisers → more revenue → better infrastructure → more users.

This feedback loop can make it difficult for smaller competitors to gain scale.

Network effects can therefore contribute to durable market power.

8. Switching Costs

Users may hesitate to switch because they have accumulated:

contacts;

photographs;

playlists;

followers;

messages;

purchase histories;

preferences;

digital identities.

The more difficult it is to transfer these assets, the greater the switching cost.

This can strengthen incumbent platforms even if technically similar competitors exist.

9. Data as a Competitive Advantage

Data is one of the central resources of the attention economy.

Platforms can collect:

search histories;

viewing behaviour;

clicks;

location information;

purchasing behaviour;

interactions;

advertising responses.

Large datasets may improve:

recommendation algorithms;

advertising targeting;

product development;

personalization.

This can create a feedback loop:

more users → more data → better service/advertising → more users.

Competition authorities therefore increasingly consider whether data advantages contribute to durable market power.

10. Case Law

There is no single body of "attention economy" jurisprudence. Instead, established EU and international competition cases provide the legal foundations for analysing these markets.

11. Case 1 — Google Shopping, Case T-612/17

Background

The European Commission found that Google had abused a dominant position in general search by favouring its own comparison-shopping service in search results.

The General Court largely upheld the Commission's decision.

Principle

The case is significant for examining how a dominant digital platform can use control over a major gateway to advantage its own downstream service.

Attention-economy relevance

Search rankings influence:

what users see;

what they click;

where their attention goes;

which businesses receive traffic.

Consequently, control over user attention and visibility can itself have competitive significance.

A dominant platform that controls access to user attention could potentially disadvantage competitors through ranking or presentation mechanisms.

12. Case 2 — Google Android, Case T-604/18

The Google Android litigation concerned several practices associated with Google's Android ecosystem.

Issues included:

tying;

search and browser distribution;

contractual restrictions;

payments and incentives;

maintaining Google's position in search.

Attention-economy significance

Mobile devices are major gateways to user attention.

Control over:

operating system → default search → browser → applications → advertising

can create significant ecosystem advantages.

The case demonstrates how dominance in one digital layer can reinforce market power in another.

13. Case 3 — Google AdSense, Case T-334/19

Google AdSense concerned online search advertising intermediation.

The Commission found that Google had imposed contractual restrictions on third-party websites concerning competing search advertisements.

Relevance

The attention economy ultimately needs mechanisms to convert user attention into revenue.

Advertising intermediation therefore constitutes an important competitive layer.

A dominant advertising intermediary could potentially disadvantage competitors by controlling access to advertisers, publishers and users simultaneously.

This case demonstrates the importance of examining multi-sided digital markets rather than looking only at the consumer-facing product.

14. Case 4 — Facebook/Meta German Abuse of Dominance Proceedings

The German competition authority's proceedings concerning Facebook's collection and combination of user data are particularly important for the attention economy.

The case raised the relationship between:

dominance;

data collection;

privacy;

terms of service;

user dependency.

The German Federal Cartel Office concluded that Facebook's extensive data combination practices constituted an abuse of its dominant position, although subsequent litigation and judicial proceedings significantly developed the legal analysis.

Attention-economy significance

This case is important because it demonstrates that privacy and data practices can have competition-law relevance, especially when users have limited alternatives.

The economic question is not merely:

"Does the consumer pay?"

but also:

"What non-monetary conditions does a dominant platform impose on users?"

15. Case 5 — Microsoft v Commission, Case T-201/04

Microsoft concerned the relationship between Microsoft's dominant operating-system position and adjacent software markets.

The case involved:

interoperability;

tying;

technological integration;

exclusionary conduct.

Attention-economy relevance

Modern attention platforms similarly control ecosystems containing multiple services.

For example:

operating system → browser → search → applications → advertising.

Control over one gateway can influence user attention throughout the ecosystem.

Microsoft therefore provides a useful framework for analysing ecosystem leverage.

16. Case 6 — United Brands v Commission, Case 27/76

United Brands is a foundational dominance case.

The Court described dominance as a position of economic strength allowing an undertaking to behave to an appreciable extent independently of competitors, customers and consumers.

Attention-economy application

A dominant attention platform might have substantial power because:

users depend upon it;

advertisers depend upon it;

content providers depend upon it;

competitors cannot easily reproduce its network;

switching costs are high.

United Brands therefore supplies the foundational concept of economic dependence and market power.

17. Case 7 — Hoffmann-La Roche v Commission, Case 85/76

Hoffmann-La Roche is a leading case concerning loyalty-inducing rebates.

Attention-economy application

A dominant digital platform might offer:

preferential advertising rates;

algorithmic visibility;

financial incentives;

exclusive access;

platform benefits

in exchange for exclusivity.

Where such arrangements foreclose competing platforms or services, the principles concerning exclusionary loyalty mechanisms become relevant.

18. Case 8 — Intel v Commission, Case C-413/14 P

Intel concerns conditional rebates and exclusionary effects.

The CJEU emphasized the importance of assessing the circumstances surrounding a rebate scheme where its ability to foreclose competition is disputed.

Attention-economy relevance

A dominant platform might give content creators or advertisers:

lower commissions;

advertising credits;

preferential ranking;

data access;

promotional benefits

conditional upon using the platform exclusively.

The Intel framework can help structure the effects analysis.

19. Case 9 — Bronner, Case C-7/97

Bronner concerns refusal to provide access to an infrastructure that may be indispensable for competitors.

Attention-economy application

A dominant digital platform might control an infrastructure that competitors need to reach users.

Potential examples include:

app distribution;

essential APIs;

digital identity systems;

advertising infrastructure;

interoperability systems.

Bronner establishes that a refusal to provide access does not automatically constitute abuse. The stringent conditions of the refusal-to-supply doctrine remain important.

20. Case 10 — Eturas, Case C-74/14

Eturas is particularly useful for digital-platform analysis.

The case concerned a common online booking platform used by several undertakings and a message concerning discount restrictions.

Significance

The case illustrates that a digital platform can become an environment through which competitive behaviour is coordinated.

For the attention economy, this is relevant because:

algorithms influence visibility;

platforms influence pricing;

common technical infrastructure can affect competition;

software settings can influence multiple businesses simultaneously.

21. Multi-Sided Markets

Attention platforms frequently connect several groups.

For example:

Users ↔ Platform ↔ Advertisers

or:

Users ↔ Platform ↔ Content creators

or:

Consumers ↔ Marketplace ↔ Sellers

Competition analysis must consider the relationships between these groups.

A platform might provide users with a free service while charging advertisers.

This creates a multi-sided market.

22. Cross-Side Network Effects

An increase in one group can benefit another.

For example:

More users → more attractive advertising audience → more advertisers → more revenue → better platform investment → more users.

These cross-side network effects can create substantial barriers to entry.

A new platform may have difficulty attracting users because it lacks advertisers, while advertisers may avoid the platform because it lacks users.

This is sometimes called the chicken-and-egg problem.

23. Self-Preferencing and Attention Allocation

One of the most significant potential issues is control over visibility.

A dominant platform might operate:

the marketplace;

a search engine;

an advertising system;

its own products.

If the platform's algorithm systematically favours its own services, competition may be affected.

The Google Shopping litigation is particularly relevant because visibility within a search environment can determine where user attention flows.

24. Algorithmic Ranking

Algorithms decide:

which posts users see;

which products appear first;

which videos are recommended;

which advertisements are displayed;

which search results receive attention.

This makes algorithmic ranking a competitive resource.

A dominant platform could potentially disadvantage rivals by:

lowering their rankings;

limiting recommendation;

reducing visibility;

changing search presentation;

manipulating default settings.

The legal analysis would depend on the platform's market position, conduct and competitive effects.

25. Attention and Advertising Markets

Advertising is often the primary monetization mechanism of attention platforms.

Competition concerns can arise if one undertaking controls:

access to users;

advertising inventory;

advertising technology;

advertiser demand;

measurement systems.

This can create a vertically integrated advertising ecosystem.

The Google AdSense and broader Google advertising cases demonstrate why competition authorities examine multiple layers of the digital advertising chain.

26. Data Combining

A platform might combine data obtained from:

social media;

search;

video;

maps;

shopping;

email;

mobile devices.

The combination can strengthen targeting and personalization.

From a competition perspective, authorities may ask whether:

competitors can obtain comparable data;

users can meaningfully switch;

data creates entry barriers;

the combination strengthens dominance;

the practice constitutes an abuse under applicable competition law.

27. Privacy as a Competition Parameter

Privacy can be considered a quality dimension.

Suppose Platform A provides stronger privacy protections while Platform B collects significantly more behavioural information.

If Platform B has substantial market power, changes to privacy conditions could potentially affect competition.

This does not mean every privacy violation is automatically a competition-law violation.

Rather:

privacy may constitute a non-price parameter of competition.

The German Facebook proceedings are particularly significant in this respect.

28. Dark Patterns and Competition

Dark patterns are interface designs that influence users toward particular choices.

Examples include:

difficult cancellation;

confusing consent screens;

default settings;

repeated prompts;

forced account creation.

From a competition perspective, concerns may arise if dominant platforms use such techniques to:

increase switching costs;

prevent multi-homing;

strengthen network effects;

reinforce platform dependence.

Competition law analysis would need to establish the connection between the practice and competitive harm.

29. Multi-Homing

Users may use several platforms simultaneously.

For example:

several social networks;

multiple search engines;

multiple marketplaces;

multiple streaming services.

Multi-homing can reduce platform power because users can switch or divide their attention.

Conversely, contractual or technical restrictions preventing multi-homing can strengthen dominance.

Therefore, competition authorities should examine actual switching and multi-homing behaviour rather than assuming users are permanently locked into a single platform.

30. Exclusivity in the Attention Economy

Exclusive contracts may involve:

content creators;

advertisers;

influencers;

publishers;

app developers;

streaming services.

For example:

A dominant video platform requires a major creator to publish exclusively on its service.

The competitive effect depends on factors such as:

duration;

market coverage;

creator importance;

alternatives;

platform market power;

foreclosure effects.

The principles developed in loyalty-rebate and exclusivity cases remain relevant.

31. Killer Acquisitions

Large attention platforms may acquire small companies before they become significant competitors.

Targets could include:

emerging social networks;

recommendation technologies;

advertising technologies;

privacy-enhancing technologies;

AI companies;

messaging services.

The concern is not necessarily current market share but future competitive potential.

Merger-control authorities may therefore need to examine:

innovation;

potential competition;

user growth;

data assets;

network effects;

technological capabilities.

32. Competition and Artificial Intelligence

AI increasingly controls attention through:

recommendation systems;

personalized feeds;

generative search;

automated advertising;

content ranking;

personalization.

This creates potential competition issues if a dominant AI platform controls how users discover information and simultaneously offers competing products.

Possible concerns include:

self-preferencing;

discriminatory ranking;

exclusive data access;

tying;

interoperability restrictions;

foreclosure of AI competitors.

33. Competition Between Attention Platforms

The central competitive question may no longer be:

"Which platform has the lowest price?"

Instead, competition can occur through:

user experience;

privacy;

content;

recommendation quality;

creator compensation;

advertising intensity;

interoperability;

data portability.

Competition law must therefore recognize quality and innovation competition.

34. Consumer Welfare Analysis

In the attention economy, consumer harm can occur without higher monetary prices.

Potential harms include:

Reduced privacy

More extensive data collection.

Reduced quality

Lower-quality content or service.

Reduced choice

Fewer viable platforms.

Reduced innovation

Less investment in alternative technologies.

Excessive advertising

More advertising and less usable content.

Reduced interoperability

Greater difficulty moving between services.

Therefore, competition authorities need a broader understanding of consumer welfare than simply measuring price increases.

35. Remedies

Potential competition-law remedies could include:

Behavioural remedies

prohibition of discriminatory ranking;

removal of exclusivity clauses;

interoperability requirements;

transparent advertising conditions.

Structural remedies

In exceptional cases:

divestiture;

separation of business units;

restrictions on acquisitions.

Data-related remedies

Potential measures could involve:

data portability;

interoperability;

restrictions on combining datasets.

The appropriate remedy depends on the specific competitive harm.

36. Key Case-Law Summary

37. Major Legal Issues

The principal competition-law questions in the attention economy can therefore be summarized as follows:

Market power

Can user attention itself form the basis for durable market power?

Zero-price services

How should dominance be measured when consumers pay nothing?

Data

When does accumulated data create an entry barrier?

Algorithms

When does algorithmic ranking become exclusionary?

Advertising

Can control over advertising infrastructure reinforce dominance?

Network effects

When do network effects become barriers to entry?

Switching

Do technical and social switching costs prevent effective competition?

Privacy

Can deterioration of privacy constitute competitive harm?

Acquisitions

Should potential competitors be protected before they achieve significant market share?

38. Conclusion

The attention economy challenges traditional competition law because attention, data, quality, algorithms and network effects can be as economically important as monetary price.

The principal competition concerns include:

dominance over user attention;

self-preferencing;

discriminatory ranking;

data advantages;

advertising-market concentration;

exclusivity;

tying;

interoperability restrictions;

algorithmic foreclosure;

killer acquisitions;

excessive switching costs.

The jurisprudence of Google Shopping, Google Android, Google AdSense, Microsoft, United Brands, Hoffmann-La Roche, Intel, Bronner and Eturas provides a strong foundation for analysing these issues.

The most important conceptual shift is that competition in digital attention markets should not be understood solely through the traditional question of price. A platform can offer a service for zero monetary consideration while possessing substantial economic power over visibility, data, advertising, user access and the allocation of attention.

Accordingly, an effective competition-law analysis should examine:

market definition → market power → network effects → data advantages → user switching → algorithmic conduct → exclusionary effects → quality/privacy effects → objective justification → consumer impact → appropriate remedy.

In the attention economy, the scarce resource is not necessarily money or physical goods. It can be human attention itself, and control over that scarce resource can become a significant source of market power.