Korea’s Proposed Fairness Act: Will It Discriminate Against American Firms?

Following the lead of the European Union’s (EU) Digital Markets Act (DMA) and the global trend toward similar platform rules, South Korea continues to actively consider enacting its own digital antitrust regulation. In particular, the so-called “Fairness Act” appears to be gaining traction in the National Assembly and would impose a broad set of restrictions and obligations on online platforms, many of which are American. At the same time, last year Korea and the United States issued a Fact Sheet affirming the historic Korea Strategic Trade and Investment Deal, whereby “the United States and Korea commit to ensure that U.S. companies are not discriminated against and do not face unnecessary barriers in terms of laws and policies concerning digital services, including network usage fees and online platform regulations.”

Digital antitrust regulations, such as, the Fairness Act can discriminate against American companies in two ways. First, these regulations can reflect de jure discrimination against U.S. technology platforms by intentionally targeting them using the law itself. For example, the EU’s DMA was designed to apply only to firms that satisfied high revenue thresholds, which disproportionately capture American, but not European, firms. As ITIF has previously explained:

[O]ne of the clearest indicators of intent comes from Andreas Schwab, a Member of the European Parliament and rapporteur of the DMA, who expressly stated that the law should focus on “the top five” companies rather than include any European firm just to “appease the U.S.” In fact, the European Parliament’s Internal Market and Consumer Protection Committee (IMCO) report, which Schwab drafted, explicitly advocated for adjusting the DMA’s thresholds in ways that kept U.S. firms within scope while exempting most EU competitors.

Earlier bills considered by the National Assembly followed the DMA’s approach of limiting their application to firms that satisfied high revenue thresholds, which, as ITIF has noted, seemed “to unfairly target U.S. [as well as] South Korean companies such as Google, Apple, Kakao, Naver, and Baemin (based on excluding platforms with direct and indirect sales of less than KRW 3 trillion or ~$2.16 billion).” By contrast, the proposed Fairness Act has much lower revenue thresholds and, as such, is likely to apply to a broad range of non-American and Korean firms, suggesting that it does not appear to discriminate against American firms de jure.

Distinct from de jure discrimination, the second way digital antitrust regulations can discriminate is de facto, which involves laws being enforced in a way that disproportionately harms American firms even if the regulation itself is neutral on its face. And, as in any case where intent is implied from the circumstances, an analysis of past similar conduct is critical—here, an examination of past enforcement by the Korea Fair Trade Commission (KFTC), which will administer the Fairness Act. Indeed, not only do many of the antitrust provisions in the Fairness Act closely track those present in Korea’s Monopoly Regulation and Fair Trade Act, but the Fairness Act also gives the KFTC the power to fine firms up to a whopping 10 percent of their global sales, thereby granting it the ability to extract massive penalties from American technology firms that compete globally.

Unfortunately, the facts present a rather clear picture of the KFTC engaging in de facto discrimination against American firms, particularly through large fines or other heavy burdens, including with respect to due process. To be sure, Korea has vigorously enforced its antitrust laws against many Korean and non-American companies. But, to some extent, this is precisely the point: While Korea enforces its competition regime broadly, American technology firms appear to pay disproportionately more in fines. For example, according to one analysis based on data provided to the National Assembly last year, whereas Hyundai, Hanssem, and SK Group recorded the highest number of antitrust violations from 2022 to the first half of 2025, Coupang, an American-headquartered firm, paid the most in fines during this period despite far fewer overall violations.

Rather than reflecting an aberration, this trend continues an all-too-familiar pattern in Korean antitrust enforcement. In the prior 3-year period from 2019 to 2022, the KFTC levied against Google the largest single-firm fine—an amount roughly equal to that issued across 4 Samsung companies in 2021 and about two-thirds of the penalty charged that same year to 11 predominantly Korean firms for far more egregious cartel behavior in the steel industry. Similarly, from 2016 to 2019, the KFTC imposed its still all-time largest fine, over KRW 1 trillion, against Qualcomm, nearly triple the amount issued against 13 Korean firms for openly anticompetitive bid-rigging behavior in the LNG space. The upshot is simple: Over the past decade, even when Korean firms have engaged in far more—and arguably more serious—antitrust violations than American technology firms, it is the latter that consistently pay the highest fines.

The KFTC’s history of questionable procedural tactics provides further confirmatory evidence of discriminatory intent that may accompany the Fairness Act. As a recent NBR report examining the experience of U.S. firms dealing with the KFTC found, “U.S. firms reveal that the practical effect of KFTC enforcement has been disproportionate scrutiny of U.S. firms, raising questions about de facto discrimination and the politicization of competition policy.” Specifically, through practices that include reliance on “unnecessarily aggressive investigative tactics and raids” and “[t]he frequent use of (or threats to use) criminal referrals as an enforcement and intimidation tool,” the KFTC has engaged in “a pattern that firms widely perceived as protectionist in effect, if not in intent.” These allegations of abuses are particularly troubling in light of the Organisation for Economic and Co-operation and Development’s now well-established recommendations regarding procedural due process in competition enforcement, which call for laws to be enforced in a “non-discriminatory manner, including without prejudice to the nationalities and ownership of parties under investigation.”

In sum, the KFTC’s enforcement record more than justifies concerns that the Fairness Act will reflect discrimination against American commerce in support of Korean industrial policy goals. American lawmakers must therefore be prepared to respond to such non-tariff attacks against U.S. technology companies. If the Fairness Act is enacted, U.S. policymakers should consider potential retaliatory measures under Section 301 of the Trade Act of 1974, as some lawmakers have already proposed in response to earlier iterations of Korean antitrust regulation. That provision authorizes the U.S. Trade Representative to take action against foreign measures that are “unjustifiable and burdens or restricts United States commerce.” Not only does this possibility appear to remain top of mind within the current administration with respect to Korean digital antitrust regulation, but doing so would also help ensure that there are meaningful consequences for competition regimes around the world that discriminate against America’s leading technology firms.