Antitrust, Attention, and the Mental Health Crisis

By Gregory Day. Full Text.

Competition for attention is causing a mental health crisis. At issue is that platforms, devices, and applications (“apps”) strive to maximize attention by, as examples, presenting users with curated streams of extremist content. The purpose of doing so is economic: a platform or app’s value is typically derived from the amount of time spent on it and depth of interaction (clicks, swipes, etc.). By manipulating users to pay attention and engage, research has found that tech addiction produces elevated rates of depression, anxiety, and similar disorders.

This landscape has led to outrage because the tech firms most responsible for imposing mental health costs wield an abundance of market power, which should perhaps attract antitrust review. The obstacle is that antitrust can only redress economic injuries such as high prices, restricted output, diminished innovation, and suboptimal quality. Because mental health is often described as a social type of injury, courts, litigants, and antitrust agencies have ignored or even rejected premising antitrust lawsuits in elevated rates of depression and anxiety. Illustrating this blind spot, Congress avoided the mental health crisis when it held an antitrust hearing in 2020 with leaders of “Big Tech,” as well as when the antitrust agencies initiated lawsuits against Google and Facebook. Since tech firms offer unlimited quantities of innovative content for “free,” Big Tech has so far evaded antitrust liability despite allegedly impairing society’s mental health.

This Article argues that elevated rates of anxiety, depression, and similar disorders should equate to paying high prices, which antitrust has missed. Rather than a social injury, mental health disorders drain $1 trillion from the U.S. economy annually due to missed work, lost productivity, costs of treatment, and elevated unemployment. This research shows that tech firms can raise barriers to entry in order to accrue above-market profits while offloading heightened costs of mental health onto users. It also demonstrates that enhancing competition would help. Using recent examples, competition has led an array of dominant firms to vie for users along mental health dimensions—such as the innovation of digital wellness programs and scaling back of digital manipulation—while reducing revenue to competitive levels. But since courts have seldom found an antitrust offense without high prices and most dominant tech firms offer innovative products for cheap or zero prices, antitrust law must recognize that eroded mental health reflects the actual costs of anticompetitive conduct in attention markets.