Data, Privacy and Competition Law

Abstract

The data-driven economy has created major challenges for antitrust enforcers. While it has produced valuable new consumer services, the rise of powerful digital platforms, which still operate in a largely unregulated environment, has also created new dangers for society. In addition to the usual economic ills associated with concentrated markets, Big Tech platforms are, directly or indirectly, facilitating novel types of harm. This raises the general question whether antitrust authorities, which have primarily focused on preventing economic consumer harm in the form of higher price over the past few decades, should intervene against these new types of harm. This short contribution explores, more specifically, whether antitrust law could and should play a role in protecting consumer privacy against unwanted data collection for tracking and profiling purposes. To this end, the paper first briefly outlines a few scenarios in which the issue of privacy could arise in antitrust assessments. It then discusses whether protecting privacy is compatible with the legal objectives of contemporary European and US antitrust law. Against this backdrop, it examines two recent enforcement actions, one by the German Federal Cartel Office and one by the US Federal Trade Commission, that attempt to integrate privacy and data protection objectives into traditional abuse of market power analyses. The paper concludes with a quick look at the position of EU antitrust law, and the European Commission’s proposals to regulate the accumulation of data in the draft Digital Markets Act.

Keywords: EU and US antitrust law, competition, privacy, digital platforms, GDPR, Digital Markets Act

JEL Classification: K10, K21, K29