Interview | Professor Caron Beaton-Wells | Competition Law and Policy Meets the Digital Age
On behalf of The Legal Forecast, Victorian President Bori Ahn spoke with Professor Caron Beaton-Wells, a Professor in competition policy and law at the University of Melbourne and a lay member of the Australian Competition Tribunal, to find out more about her inspiring career spanning from the Bar to academia, her thoughts on the ACCC’s inquiry into digital platforms, and why her most-used emoji is the surprised face.
GETTING TO KNOW PROFESSOR CARON BEATON-WELLS
1. What’s something in your life that you’re excited about right now?
The prospect of my 13-year-old son on the podium for interschools snowsports this season! A close tie would be the impending release of the ACCC’s Final Report in its Digital Platforms Inquiry.
2. What's your most used emoji?
The surprised face! Because I am constantly surprised or amazed by what’s happening in my field right now, whether it’s Facebook announcing that it is to launch a global cryptocurrency, or the European Commission issuing another multi-billion dollar fine on Google, another US Democratic presidential candidate declaring that the solution to concentrated digital markets is to break up the tech giants, or Mark Zuckerberg professing his profound commitment to privacy…. It’s a very fast moving and contested field in which stakeholders are pitted against each other (not just tech companies vs government but academic vs academic) on questions of whether and how competition policies and regulation should apply.
3. What's your favourite or most memorable court case?
The Stolen Generations case in which I acted as junior-junior counsel for the Commonwealth. By a combination of luck and ‘right place at the right time’, I was briefed in this case in my first year at the Bar, almost fresh out of Law School (having only practiced as a solicitor for 18 months). The three years I spent on the case was my apprenticeship at the Bar (I did my first cross-examination in the Alice Springs courthouse) but also left an indelible mark on me about how our legal system works (the good, bad and ugly) and its relationship with politics. More about this here.
4. You started your career as a solicitor, then practised as a barrister for over a decade, and are now a lay member of the Australian Competition Tribunal. Do you have any advice for law students and early career lawyers who wish to follow in your footsteps?
I don’t think anyone should aspire to follow in anyone else’s footsteps. When I was at Law School, most of my peers saw the end-game as partnership in a large law firm. I did too, that is, until about six months into my first and last stint at a large law firm! Against the strong cautions of those far more experienced and wiser than me, I fled to the Bar (via a Judge’s Associateship) as a 23 year old and I have never regretted that decision. I then did not allow a busy Bar practice stop me from starting a PhD (mostly completed on planes to and from Darwin for the Stolen Generations case) as a way of satiating my curiosity about competition law (my PhD was on evidence in market definition cases for competition law proceedings). Nor did I hesitate to join the academy when it dawned on me that this was a way to have a real impact on public policy and law reform. I guess the key take-outs from all this would be: follow your instincts, keep moving forward, have confidence in yourself and find your own path.
ACADEMIA AND LEGAL EDUCATION
5. In your research, you engage key stakeholders in government, business, the legal profession, and academia. It's a key reason your research has the impact that it does. What are your key learnings from each of these stakeholder types? How do they inform your research?
You are right: engaging with stakeholders is at the heart of everything I do in my academic career. The reason for that is that I have long been concerned and determined to avoid the “ivory tower” critique so often (and often misguidedly) directed at academics. I see very little, if any, point theorizing about issues and problems without understanding and testing what “the theory” means in practice. The only way to do this is to understand the perspectives of those “on the front line”. Each of these perspectives - whether it be in government, business, the legal profession or the general public – is very different from the other. What has struck me over the years, however, is that all of them is self-interested in their own way. I don’t mean that in a critical sense. It’s just that each stakeholder approaches an issue through their own lens, having regard to what it means for them particularly. Often, in multi-stakeholder fora, I am struck that as an academic, I am the only one present without a vested interest or agenda. That is both an opportunity and a challenge.
6. What have been some of your challenges and successes in pioneering your wholly online masters program?
Having never studied or taught online before and not being much of a techie, putting my hand up to develop and lead the Law School’s first wholly online masters program was truly a leap of faith (or, as many of my colleagues saw it, sheer madness!). It was a steep learning curve and, from a research perspective, a black hole that swallowed up most of my time for three years. But it was also one of the achievements of my academic career to date of which I am most proud. In my view, the experience we offer our masters students online is superior to anything we can offer in the brick and mortar classroom. Our online students (all of whom are full-time working professionals) have unparalleled flexibility in choosing where (literally anywhere!) and when they study. They have regular and rich interaction with their teachers and peers (both of whom are located all around the world) on discussion boards and in webinars and they enjoy multiple modes of learning using a diverse array of multi-media.. far more stimulating, in my view, than sitting in a lecture theatre! I only wish this kind of learning was around when I was at University…
7. On the podcast 'Competition Lore’ (*Professor Caron is host of the podcast!), you spoke about the difficulty in measuring the impact of digital platforms like Facebook because consumers pay with their data, not money. Given that the ACCC has recently conducted an inquiry into digital platforms, what's your opinion on how best to update competition policy in this respect? And what other changes should be made to ensure competition policy keeps up with the digital economy?
This is a BIG topic.. don’t get me started! There is no doubt, in my view, that competition policy and law need to adapt to deal with the new and in some respects novel features of digital markets (including extraordinary economies of scale, platform business models, massive accumulations of data and highly sophisticated data analytics, network effects, rapid technology-driven cycles of innovation, to name a few). In terms of legal adaptations, we need to be less hung up on market definition (especially in multi-sided markets), more attuned to different types of market power (eg intermediation and bottleneck power), less price-centric and more sensitive to non-price competitive effects (quality and price) and less concerned about false positives in our error-cost assessments for enforcement.
In addition, there is a growing consensus around the world that pro-competition regulation is required as a complement to competition law enforcement. Regulatory measures being proposed, and implemented in some countries, relate to data access and portability as well as rules for platform dealings with business users to enhance transparency and fairness, and prevent discrimination. Australia is leading the way in the former respect with its Consumer Data Right and further regulatory developments may be on the horizon, courtesy of the ACCC’s recommendations in its Digital Platforms Inquiry.
8. You're a big proponent of a multi-disciplinary approach to competition policy and law. What does a multi-disciplinary approach to your research look like?
I have had the privilege of working with scholars from the disciplines of economics, regulation, political science, sociology and criminology. Try getting an economist and a sociologist to understand each other! It is a challenge given they speak different languages and can have very different world views, but it is also lots of fun.
9. What current technological or non-technological innovation in competition law excites you?
If there is some non-technological innovation in competition law currently, let me know! The discourse in this field is almost entirely focused on tech, at least from where I am sitting!