Should the Internet Exempt the Media Sector from the Antitrust Laws?

Posted by D. Daniel Sokol

Thomas Jeffrey Horton, University of South Dakota, School of Law and Robert H. Lande, University of Baltimore – School of Law ask Should the Internet Exempt the Media Sector from the Antitrust Laws.

ABSTRACT: This article examines whether the “old media” and the “new media”, including the Internet, should be considered to be within the same relevant market for antitrust purposes. To do this the article first demonstrates that proper antitrust consideration of the role of non-price competition necessitates that “news” and “journalism” be analyzed in two distinct ways. First, every part of the operations of a newspaper (or other type of media source), including its investigative reporting and local coverage, should be assessed separately. We present empirical evidence collected for this study which demonstrates that the old media continues to win the vast majority of journalism awards. This and other evidence shows that the quality and variety of a number of specific old media functions are often so much better they should be considered distinct markets for antitrust purposes. Second, the evidence shows that the totality of what newspapers (or other media sources) do should be analyzed as a whole. This is because newspapers constitute a valuable form of “one stop shopping” for a diverse array of bundled journalism.

For both reasons newspapers often should continue to constitute separate markets for antitrust purposes. If antitrust decision makers accept arguments that the Internet should routinely be included within the same market as the traditional media, however, the media sector would become virtually exempt from the antitrust laws. This would be a prescription for disaster.