For over six hours on October 4, people across the world had trouble accessing Facebook, WhatsApp, and Instagram. Facebook released a statement citing the reason for the outage as a change in the configuration of the backbone router. Reports noted how the outage contributed to close to a US $ 7 billion fall in Mark Zuckerberg’s vast personal wealth. More importantly, others observed how the outage disrupted people’s lives and the running of businesses, particularly across developing countries. In Latin America, Africa, and parts of Asia, including India, Facebook and WhatsApp perform vital functions, akin to public utilities. They are known to support ‘a wide range of quotidian activities, from personal to economic, from spiritual to political’ and have been aptly referred to as ‘Technologies of Life’. In the Philippines and Myanmar, because Facebook made its services free, it has been described as the internet itself. Notably, these digital platforms have become important intermediaries in the market that buyers, sellers, and advertisers have come to depend on. For instance, in Latin America, small-scale sellers depend on WhatsApp to broadcast and sell their wares. The power a select few private digital platforms like Facebook, Amazon, Google, etc., hold over our daily lives is worrisome, particularly since there have been several reports of abuse of their dominance in the past few years. This piece will focus on one aspect of digital platforms, their role as market infrastructures and consequently how we can regulate them to prevent abuse. Due to their scale, indispensability, and importantly social value, it may be argued that certain digital platforms have started to become infrastructures. Amazon’s vast warehousing and logistics facilities in India, for instance, is unrivalled and Amazon is able to harness its scale to match the conveniences of your local kirana store. Sabeel Rahman from the Brooklyn Law School notes that infrastructural status allows platforms to exercise or abuse three kinds of powers. Gatekeeping power: when digital services become essential then platforms can impose unfair conditions, a kind of rent extraction, on third parties who want to use their services. Transmission power: this allows platforms to determine how data is routed through their systems. Scoring powers: platforms can determine the visibility of third party actors on their platform by using the vast data under their control to arrange and index them.Many of these powers are being flexed by digital platforms in India. It was recently reported that Amazon undercut sellers in India by cloning their products and promoting its private label by using the data they have on these sellers. It was also revealed that search results were manipulated to boost Amazon-owned products. This is an abuse of Amazon’s transmission and scoring powers. The 2020 Market Study on E-commerce in India from the Competition Commission of India (CCI), noted an apprehension amongst sellers on digital platforms across three sectors (goods, food and accommodation) because of ‘a lack of clarity in ranking criteria’ in search results. Other issues to which sellers alluded to include the exploitation of superior bargaining power by the platform through unfair contract terms and violations of platform neutrality through preference shown to the platform’s private labels. The latter is a clear violation of the platforms’ gatekeeping powers.A 3D-printed Facebook logo and representations of cryptocurrency are standing on a motherboard in this picture illustration taken April 17, 2020. Photo: Reuters/Dado Ruvic/IllustrationThere is no doubt that powerful digital platforms need to be regulated, but in the process, we must also try to preserve the efficiencies they engender both to sellers and users, particularly that of scale. What this means is that breaking up digital platforms may not always give us the best results. Keeping this in mind there two ways in which powerful digital platforms can be regulated: ex-post and ex-ante regulations. Also read: Supreme Court Refuses to Stay Antitrust Probe Against Walmart, FlipkartEx-post regulations come into effect after an infraction has occurred. Competition law largely takes an ex-post approach and has become the instrument of choice to keep powerful digital platforms in check across different countries. In India, the CCI was initially reluctant to interfere in the functioning of digital platforms. For example, in All India Online Vendors Association (AIOVA) v. Flipkart and Ors it held that ‘any intervention in such markets needs to be carefully crafted lest it stifles innovation.’ The EFDHowever, this position seems to be shifting, as the CCI recently instituted a probe against e-commerce giants Flipkart and Amazon due to allegations of preferential dealing and stifling of competition. If India does decide to pursue this course, the essential facilities doctrine (EFD), could be of aid to the CCI and courts. The doctrine has been used by courts, particularly in the United States (US) and European Union (EU), under the abuse of dominance provisions of antitrust/competition law to ensure fair and non-discriminatory access to infrastructures.EFD was first used in 1912 by the US Supreme Court to wrestle control of an important terminal railroad facility from a monopolistic actor who was imposing unfair terms on those who wanted to use the facility. The court did not wish to break up the facility because of its positive co-ordination effects, and further duplicating the facility was prohibitively costly. Instead, it decided to enforce open and non-discriminatory access to the infrastructure.In India, the doctrine remains underutilised although the CCI and the director generals who have investigated cases of anti-competitive behaviour have referred to it in passing. To create conditions conducive to fairer and more inclusive markets, the CCI can use ongoing litigation against tech giants to more carefully consider EFD. Ex-ante regulationsCountries are also pursuing ex-ante regulations to manage powerful digital platforms. These types of regulations are designed to apprehend certain behaviours through bright-line rules describing conduct that is allowed and that is disallowed. India has sectoral regulations around utilities such as the Telecom Regulatory Authority of India Act 1997 and the Electricity Act 2003, that are ex-ante and prescribe the conduct of market players. In fact, both these statutes have EFD like anti-discrimination mandates for gatekeepers in the market (which in these cases was the state). Similarly, EU, China, and the United Kingdom amongst others have proposed sectoral regulations of powerful digital platforms. EU’s Digital Markets Act seeks to regulate platforms in sectors such as social networking, and interpersonal communications that have ‘significant impact on digital markets’ or in other words are ‘gatekeeper’ digital platforms. The Act has both qualitative and quantitative criteria to identify gatekeepers. Platforms that are deemed gatekeepers are not allowed to indulge in black-listed activities that are laid out in the Act, including disallowing third-party sellers from offering their products on another service. Given that India has a precedent of regulating utilities through sectoral regulations, parliament could also consider legislative means to regulate the abusive behaviour of powerful digital platforms in the market. Certain digital platforms are on the path to acquiring infrastructural status in India, the task now is to ensure that the state is equipped to deal with their mammoth and sometimes unaccountable power while preserving their benefits. Competition law and sectoral regulations both provide avenues for such a balancing act. Ex-ante and ex-post solutions, however, are not alternates to each other, and should be used in combination. Amrita Vasudevan works at the intersection of tech, law and, society.