If at First Consumers Don’t Switch, Regulate Again
Under the Digital Markets Act (DMA), consumers are apparently sovereign—right up until they choose the wrong thing.
When Mozilla reports that Firefox is now selected through a DMA browser-choice screen once every 10 seconds—more than 6 million selections in total, with daily active iOS users 113% higher in the European Union than they would have been absent the regulation—the result is treated as proof that the DMA is working. Consumer choice has spoken.
When fewer than 1% of Meta users chose its new paid, ad-free subscription option—introduced largely to comply with DMA edicts—over the existing free, ad-supported alternative, that result was treated as proof that the DMA needs to go even further. Critics pointed to the low uptake as evidence that Meta had priced the subscription to deny users a “genuine” choice. Consumer choice, it seems, needed a chaperone.
Notice the asymmetry. In the first case, consumer choice is a verdict to be respected. In the second, it is a symptom to be cured. The common thread is not consumer welfare, but direction of travel. Choice matters when it moves users away from a designated gatekeeper. When it does not, regulators and commentators look for reasons to discount it.
I develop this argument at greater length in a new International Center for Law & Economics (ICLE) white paper. It nonetheless merits separate treatment because it captures something about the DMA that more familiar critiques—focused on per se rules, limited judicial review, or the absence of an effects-based analysis—do not fully reach.
The DMA does not ignore consumer choice. It instrumentalizes it. Choice enters the analysis on one condition: it must support more intervention.