Three things the press keeps getting wrong about the Facebook antitrust case

This stuff is complicated which is why it is important to get it right.

BY TIM WU & SCOTT HEMPHILL

Law is complex and antitrust law is even more so. Nonetheless, the business and the tech press keeps making the following repeated errors in their coverage of the Facebook antitrust case:

1. Reporting that the Instagram and WhatsApp mergers were approved in 2012/2014 and discussing such “approvals” as if they are legally binding precedent

In 2012 and 2014, the FTC declined to take action against the acquisitions of Instagram and WhatsApp. As a legal matter — which matters, since we are speaking of a legal action — declining to take action has no binding effect on future enforcement actions. That is a well established principle not just in antitrust, but any area of law enforcement. Indeed, we applaud criminal prosecutors when they revisit cold cases with new evidence.

This is an important rule, because non-action might become action in the face of new evidence, and indeed that is what the FTC has in this case. In 2012, the durability of Facebook’s…