Private regulation by dominant firms and the digital infrastructure of democracy controlled by some firms constitute the areas where the separation of powers principle, envisaged in a broad sense, and antitrust may share much common ground. A single dominant digital firm may adopt private regulation affecting an entire industry and even society at large, be an important part of the digital infrastructure of democracy and, through many means including lobbying, exercise a significant influence on public decision-makers. Such a firm concentrates an immense amount of politico-economic powers. At the same time, it is subject to antitrust laws and relevant from a contemporary and prospective separation of powers’ viewpoint. Antitrust could, in the end, contribute to the separation of powers in the digital era and, ultimately, to trust. Antitrust for trust, or the ultimate apparent antitrust paradox.

Separation of powers arguments may play a role in antitrust. The opposite is also true, as antitrust may influence the separation of powers envisaged in a broad – political and economic – perspective. Indeed, the concentration of power by a few companies of the digital economy reveals data, platform and politico-economic powers, which may lead to a rethinking of our understanding of separation of powers and let us question the role of antitrust de lege lata in this regard. One of the difficult tasks posed by antitrust typically consists of defining the relevant markets, often a key element of antitrust analysis and enforcement. Once the markets are defined, data access, portability, sharing, and interoperability, as well as the interdiction of abusive discrimination, raise fundamental issues from a politico-economic perspective of or on the separation of powers principles and antitrust. Discrimination by a dominant firm may trigger the application of antitrust or competition laws. Ultimately, antitrust may contribute to deconcentrate data or platform power and support some form of separation of powers from a politico-economic perspective.

This chapter develops the necessary conditions for the vision of property flexibility to flourish and become a valuable normative alternative. It returns to the themes raised in previous chapters, and advances three main arguments. First, it offers a robust normative account of the institutional choices for access, arguing that peer-to-peer markets offer considerable benefits from a flexibility perspective. Instead of the current regulatory support for commercial access, the law should consider regulatory means that encourage the peer-to-peer model of access. The problem with this endorsement of the peer-to-peer model is the power of the platform. Second, this chapter calls for a better conceptualization of the role of platforms as powerful agents constituting the activity. It suggests two possible reforms: the promotion of platform alternatives that have some public oversight, and the regulation of platforms as market-constituting fiduciaries. Finally, the chapter evaluates the comparative normative value of each vision, stability and flexibility, and offers guidelines for a legal scheme that recognizes both the subversive and the ideal.