Blind Spot: The Attention Economy and the Law

Article Source: Antitrust Law Journal, Vol. 82, Forthcoming 2018
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Firms like Google and Facebook rely on consumer attention, a limited resource. Consumer protection laws and antitrust law assume that harm must be monetary, and do not effectively control problems that arise from unwanted intrusions on our attention.


Policy Relevance:

Regulators should protect consumers from losses due to intrusions on their attention.


Key Takeaways:
  • In dealing with anticompetitive conduct online or assessing mergers of online firms, regulatory agencies struggle to assess the power of firms like Google and Facebook, which rely on attention from consumers rather than cash transactions.
  • Unwanted intrusions on our attention can cause cognitive impairment, but consumer protection agencies like the Federal Trade Commission (FTC) assume that harm must be monetary, and do not effectively deal with this problem.
  • “Attention brokerage” is the resale of human attention by firms that offer free service, entertainment, news, or similar enticements to attract the attention of the public and resell the attention to advertisers for cash.
  • Time spent online would be an appropriate way to measure power in attention markets for antitrust purposes.
  • In assessing the merger between Instagram and Facebook, British regulators stated that Instagram and Facebook were not competitors, because Facebook did not have a photo-taking app, and Instagram did not sell ads; but both firms compete for consumer attention, and the merger eliminated a firm in a strong position to compete with Facebook in mobile markets.
  • Attention brokers will attempt to increase the load on our attention up to the point of consumer revolt; for example, television programmers find that the maximum amount of advertising that consumers will tolerate is 14-16 minutes per hour, with more between shows.
  • At first, Facebook showed minimal advertising, but then began to maximize its price by changing the mix of ads and other content, setting something like a monopoly price.
  • Regulators should focus on nonconsensual seizures of attention, as advertising is hard to ignore, and consumers are often part of a captive audience; this is more than an annoyance, it is a theft of our attention, a valuable resource.



Tim Wu

About Tim Wu

Tim Wu is the Julius Silver Professor of Law, Science and Technology at Columbia Law School. Widely known for coining the term net neutrality in 2002 and championing the equal access to the Internet, Professor Wu teaches about teaches antitrust, copyright, the media industries, and communications law, and his writing addresses private power, free speech, and information warfare.