Attention Diversion as Measurable Competitive Harm

1. Meaning

Attention diversion in competition law refers to conduct by a dominant platform or undertaking that redirects users' attention, traffic, clicks, engagement, or purchasing opportunities away from competing products or services toward the undertaking's own or preferred offerings.

In digital markets, user attention is an important competitive input.

Examples include:

a search engine placing its own service prominently above rivals;

a marketplace ranking its own products more favourably;

an app store giving its own apps preferential visibility;

a social-media platform directing users toward its own services;

a digital assistant favouring affiliated services;

a platform designing interfaces that make competing services harder to discover.

The competition-law question is not simply:

“Did the rival lose attention?”

It is:

“Did the undertaking use its market power or exclusionary conduct to divert attention in a manner capable of producing legally relevant foreclosure or consumer harm?”

2. Why Attention Matters Economically

Digital competition often occurs for user attention rather than merely physical shelf space.

A user has limited:

time;

screen space;

cognitive capacity;

search effort;

willingness to compare alternatives.

Therefore, visibility can become a competitive resource.

For example:

1,000,000 searches

→ first result receives substantial traffic

→ competing results receive less traffic

→ lower traffic reduces sales

→ lower sales reduce investment

→ weaker competitor becomes less attractive

→ dominant platform's position strengthens.

Thus attention can produce measurable economic consequences.

3. Attention Diversion vs Ordinary Competition

Not every diversion of attention is unlawful.

A company normally competes by trying to attract customers.

For example:

Company A launches a better product and consumers voluntarily switch from Company B.

That is ordinary competition.

The competition concern becomes stronger where a dominant platform uses its control over an important gateway to systematically disadvantage competitors.

4. The Basic Theory of Harm

A useful model is:

Dominant platform

↓

Controls user interface / ranking / distribution

↓

Preferential placement or exclusionary design

↓

Competitor receives less attention

↓

Clicks/traffic/conversions decline

↓

Competitor's competitive ability deteriorates

↓

Rivals face greater barriers to expansion

↓

Potential foreclosure

This converts attention diversion from an abstract concept into a potentially measurable competitive effect.

5. Attention as a Competitive Input

Traditional competition analysis often focuses on:

price;

quantity;

market share;

costs.

Digital markets additionally require attention-related metrics such as:

impressions;

clicks;

click-through rates;

search visibility;

ranking position;

conversion rates;

time spent;

user engagement;

app downloads;

referrals;

traffic diverted.

These indicators can help determine whether conduct has actually changed competitive conditions.

6. Measuring Attention Diversion

Suppose before a platform intervention:

After preferential placement:

The change does not automatically prove an infringement.

But it provides evidence that the platform's conduct may have had a substantial effect.

7. Counterfactual Analysis

A particularly important method is the counterfactual.

The authority asks:

What would user attention have looked like if the challenged conduct had not occurred?

For example:

Actual world:
Rival receives 10 million clicks.

Counterfactual world:
Rival would have received 25 million clicks.

Estimated diverted attention:

15 million clicks

The next question is whether those lost clicks affected competition.

8. From Attention Loss to Competitive Harm

Attention diversion becomes more legally significant when it causes:

1. Traffic foreclosure

Rivals lose meaningful user traffic.

2. Reduced sales

Traffic reduction translates into fewer transactions.

3. Reduced scale

Lower demand prevents competitors from achieving economies of scale.

4. Data disadvantage

Less traffic produces less behavioural data.

5. Innovation reduction

Lower revenues reduce investment capacity.

6. Exit

Competitors may ultimately leave the market.

Thus:

Attention loss → economic loss → weakened competitive constraint.

9. Self-Preferencing

Self-preferencing is one of the clearest modern contexts for attention diversion.

A platform may simultaneously be:

an intermediary; and

a competitor.

For example:

Search engine

→ controls search results

→ also operates a comparison-shopping service.

If the platform systematically gives its own service greater visibility, the conduct may divert user attention from rival services.

10. Google Shopping

Google Search (Shopping)

European Commission / General Court

Principle

The Google Shopping case concerned Google's treatment of its own comparison-shopping service within general search results.

The Commission concluded that Google had abused its dominant position by favouring its own comparison-shopping service over competing comparison-shopping services.

The General Court subsequently upheld the core infringement finding.

Attention-diversion significance

The case is highly relevant because ranking and visibility affected traffic.

The competitive mechanism can be represented as:

Google search gateway

→ preferential visibility for Google's service

→ increased user attention

→ increased traffic

→ reduced visibility/traffic for rivals.

This demonstrates why user attention can become an important component of competition analysis.

11. Google Android

Google and Alphabet v Commission

Case T-604/18

Subject

The case concerned Google's Android-related contractual arrangements and the distribution of Google services.

Relevance

Mobile platforms control important points of access to users.

Defaults, pre-installation and distribution arrangements can influence which applications and services receive user attention.

Attention theory

Pre-installation/default

→ greater user exposure

→ more usage

→ more data and ecosystem participation

→ stronger competitive position.

The case therefore demonstrates how distribution control can influence attention allocation.

12. Microsoft v Commission

Microsoft Corp. v Commission

Case T-201/04

Subject

The case concerned Microsoft's conduct relating to interoperability and the integration of Windows Media Player.

Principle

The EU courts examined Microsoft's use of its dominant operating-system position in relation to an adjacent market.

Attention-diversion relevance

An operating system controls a significant interface through which consumers interact with software.

Integration or preferential positioning can therefore influence:

consumer awareness;

usage;

developer incentives;

distribution opportunities.

The case demonstrates the broader principle that control over an important technological gateway can affect competition in neighbouring markets.

13. United States v Microsoft

D.C. Circuit, 2001

Subject

Microsoft's conduct relating to Internet Explorer and competing browsers.

Principle

The court examined Microsoft's exclusionary conduct and its use of its operating-system position to disadvantage competing browser technology.

Attention relevance

The browser was an important gateway to internet services.

Therefore:

OS control → browser distribution → user exposure → downstream competitive effects.

The case is useful for understanding how control of a distribution interface can influence consumer access to rival products.

14. Google AdSense

Google and Alphabet v Commission

Case T-334/19

Subject

The case concerned contractual restrictions associated with Google's online advertising intermediation business.

Competition relevance

Advertising platforms operate through interactions between:

users;

publishers;

advertisers;

advertising intermediaries.

Control over traffic and visibility can influence where advertising attention is directed.

Attention-diversion connection

A platform that controls a significant advertising gateway can potentially affect the distribution of commercial attention among competing advertising services.

15. Apple App Store Litigation

Epic Games v Apple

U.S. District Court for the Northern District of California

Subject

The litigation concerned Apple's App Store ecosystem, including distribution and payment rules.

Attention relevance

The App Store is an important discovery and distribution mechanism.

Developers compete not only for users' money but also for:

search visibility;

rankings;

downloads;

reviews;

recommendations;

screen space.

Therefore, platform rules affecting app discovery can have competitive consequences.

The case is particularly relevant to modern platform gatekeeping and attention allocation.

16. Booking.com / Hotel Platform Context

Digital platforms can also affect competition by controlling the visibility of suppliers.

For example, an online travel platform may influence:

ranking;

recommendations;

sponsored placement;

search results;

consumer reviews.

A hotel that loses visibility can experience:

lower impressions → fewer bookings → reduced revenue → reduced ability to compete.

However, the legality of particular ranking or recommendation practices depends on the applicable competition rules and factual circumstances.

17. Bronner

Oscar Bronner GmbH v Mediaprint

Case C-7/97

Principle

The CJEU established a strict test concerning refusal to provide access to an allegedly essential facility.

Relevance to attention

Access to a major distribution or information channel cannot automatically be demanded simply because it would make competition easier.

This creates an important limitation on attention-diversion arguments.

A rival must establish the legally relevant conditions for intervention.

18. IMS Health

IMS Health GmbH & Co. OHG v NDC Health

Case C-418/01

Principle

The CJEU addressed refusal to license intellectual property and the exceptional circumstances in which compulsory access may be required.

Attention relevance

If access to a dominant platform or infrastructure is indispensable for effective competition, denial of access may potentially affect a rival's ability to reach customers.

Again, however, the legal test is demanding.

19. Qualcomm

Qualcomm (Predation)

Case T-235/18

Principle

The General Court annulled the Commission's decision imposing a fine concerning Qualcomm's alleged predatory pricing.

Relevance

The case illustrates why competition authorities must establish actual or potential competitive effects using appropriate evidence.

This is important for attention-diversion theories.

A decline in clicks or visibility alone does not automatically establish unlawful foreclosure.

20. Measurable Indicators of Attention Diversion

A competition authority could potentially examine:

A. Visibility

impressions;

ranking position;

screen placement;

recommendation frequency.

B. User behaviour

click-through rate;

dwell time;

conversion rate;

bounce rate.

C. Commercial outcomes

sales;

bookings;

subscriptions;

advertising revenue.

D. Competitive outcomes

market shares;

entry;

exit;

expansion;

investment.

E. Dynamic effects

innovation;

product quality;

developer participation;

data accumulation.

21. Click-Through Rate Analysis

Suppose a rival previously appeared in position 2.

Its click-through rate:

20%

After the platform's intervention, it falls to position 7.

CTR becomes:

4%

If the platform receives 100 million relevant searches:

Before

20 million clicks.

After

4 million clicks.

Difference

16 million fewer clicks.

This is a measurable attention effect.

But the competition-law analysis must continue:

Did the lost clicks materially weaken the rival's ability to compete?

22. Traffic Diversion vs Competitive Foreclosure

These are not identical.

Traffic diversion

Users move from Rival A to Platform B.

Competitive foreclosure

The conduct makes it substantially harder for Rival A or other competitors to compete effectively.

Therefore:

Traffic diversion ≠ automatically foreclosure.

A rival may lose traffic but remain highly competitive.

23. Consumer Harm

Attention diversion may affect consumers through:

Reduced choice

Consumers see fewer alternatives.

Higher prices

Reduced competition may eventually permit higher prices.

Lower quality

Competitive pressure may decline.

Reduced innovation

Rivals may have fewer resources to innovate.

Reduced privacy

If competition from privacy-oriented alternatives declines, consumers may lose alternatives.

Reduced diversity

In media or information markets, concentration of attention may reduce exposure to alternative providers.

24. Attention Diversion and Zero-Price Markets

A major feature of digital competition is that services may be free.

Therefore, traditional price analysis may not detect harm.

Instead, competition authorities may examine:

attention;

quality;

privacy;

innovation;

advertising load;

data collection;

user choice.

Thus:

“Price = zero” does not necessarily mean competition is irrelevant.

25. Attention as a Two-Sided/Multi-Sided Market

Many platforms connect different groups.

For example:

Users ↔ advertisers

or

Consumers ↔ sellers

or

Users ↔ developers

Attention on one side can influence the other.

Example:

More user attention → more advertisers → greater advertising revenue → better platform investment → more user attraction.

This can create another network effect.

26. Artificial Attention Diversion

A particularly important distinction is:

Organic diversion

Consumers choose the platform because they prefer its product.

Artificial diversion

The platform uses its gatekeeper position to manipulate access or ranking in a way that disadvantages competing offerings.

Competition law is more concerned with the second category when the legal requirements for an abuse are satisfied.

27. Dark Patterns and Attention

Interface design can also influence attention.

Examples include:

misleading buttons;

default selections;

difficult cancellation;

repeated prompts;

hidden alternatives;

confusing menus.

Some such practices may implicate consumer-protection or digital-regulation laws rather than competition law alone.

Competition relevance increases where the design is used by a dominant undertaking to exclude competing services.

28. Causation Problem

A major legal challenge is establishing:

Platform conduct → attention diversion → competitive harm

Suppose a competitor's traffic falls 30%.

Possible explanations include:

platform ranking;

competitor's poor product;

changing consumer preferences;

seasonality;

new entrant;

economic downturn;

technical problems.

Therefore, authorities may need a credible counterfactual and evidence isolating the effect of the challenged conduct.

29. Counterfactual Methods

Possible methods include:

Before-and-after analysis

Compare traffic before and after the intervention.

A/B testing

Compare users exposed to different ranking systems.

Difference-in-differences

Compare affected and unaffected groups.

Natural experiments

Use changes that occurred independently of the platform's conduct.

Structural modelling

Estimate consumer choices and diversion patterns.

These methods can turn the concept of attention diversion into an empirically testable theory.

30. Attention Diversion and Article 102 TFEU

A simplified framework is:

Step 1

Establish dominance.

Step 2

Identify the platform's control over a relevant user-access point.

Step 3

Identify the conduct causing preferential attention allocation.

Step 4

Measure actual or potential foreclosure.

Step 5

Examine consumer and competitive effects.

Step 6

Consider objective justification/efficiencies where legally applicable.

The central question remains:

Does the conduct restrict competition rather than merely redirect demand through normal competition on the merits?

31. Attention Diversion and Article 101 TFEU

Attention diversion can also arise through agreements.

For example, competing firms may agree:

not to advertise on particular platforms;

to exclude rival services;

to allocate users;

to restrict interoperability;

to impose exclusivity.

Such agreements may raise Article 101 issues depending on their object/effects.

Therefore, attention diversion is not exclusively an Article 102 concept.

32. Remedies

Potential remedies depend on the conduct.

Ranking remedies

Require neutral or transparent ranking criteria.

Non-discrimination

Prevent discriminatory treatment of competing services.

Choice mechanisms

Give users meaningful options.

Interoperability

Allow rivals to connect to relevant infrastructure.

Data access/portability

Reduce artificial informational advantages where legally appropriate.

Behavioural restrictions

Prohibit particular exclusionary practices.

Structural remedies

In exceptional circumstances, structural separation may be considered under the relevant legal regime.

33. Important Case-Law Table

34. Key Distinction for Examinations

Attention diversion

Loss of user attention/traffic

↓

Economic effect

Lower clicks/sales/revenue

↓

Competitive effect

Reduced ability to compete

↓

Foreclosure

Rival's competitive constraint is materially weakened

Only the later stages necessarily establish the type of competitive harm that competition law is concerned with.

35. Conclusion

Attention diversion is increasingly important in digital competition law because user attention can function as a scarce competitive resource. Search engines, marketplaces, app stores, social networks and other platforms control interfaces through which consumers discover competing products.

The strongest legal cases arise where a dominant intermediary uses control over that interface to favour its own service or otherwise disadvantage rivals, and the evidence demonstrates that the conduct is capable of weakening effective competition.

The crucial distinction is:

A competitor losing attention because consumers prefer another product is normal competition. A dominant gatekeeper deliberately manipulating access to attention in a way that forecloses competing services may constitute a competition-law problem.

Quick Revision Formula

Gatekeeper Power + Attention Control + Preferential/Exclusionary Conduct + Measurable Traffic Diversion + Competitive Foreclosure = Potential Competitive Harm

Remember:
Attention loss is evidence of an effect; it is not, by itself, proof of an antitrust infringement.