Interface between competition law and personal data: challenges and possibilities

The paper “Interface between competition law and personal data: challenges and possibilities” (Batura, O.) will be presented at the 5th Conference on the Regulation of Infrastructures (24 June 2016).

ABSTRACT

For many years, discussion on personal data has been led in the context of data protection and, to a certain extent, privacy rules, and up until recently its economic significance has not been considered a topical issue. The development in information and communications technologies (ICT), digitalization of everything, possibility to store and process enormous amounts of data has made data the oil of new economy, the main resource and a competitive issue.

However, application of competition rules to data in general and personal data in particular is not straight forward – as is the possibility of competition law to take other, non-economic values into account. The relation of competition law and personal data is an important problem that requires an urgent clarification because there is a growing number of cases involving ICT undertakings (for example, antitrust investigations of the European Commission in Microsoft/ Skype acquisition, Microsoft/ Yahoo! Case on online advertising, Google/ DoubleClick merger, Facebook/ WhatsApp merger, the ongoing Google case) and because most undertakings of traditional industries are discovering big data analysis for themselves.

So far, the Commission has noticed the raised concerns about personal data and privacy, but dismissed them. It did not deal with the question whether there is a market for personal data, did not analyse the possible effects of the combination of data assets by the companies and did not consider data protection and privacy policy as a parameter of competition. Moreover, the Commission draw a delimitation line by stating that assessment of data protection and privacy issues does not fall into its remit as a competition authority. This de jure correct statement might nevertheless lead to the ignoring of important emerging competition issue as some opinions suggest (see the Opinion of the European Data Protection Supervisor (EDPS) “Privacy and competitiveness in the age of big data” in 2014  and of several workshops at the EDPS in 2014-2015 ).

In the described context several questions arise that shall be answered as the result of the planned research. First, what is the relationship between competition law and personal data? Can a conflict of values (economic versus non-economic) be identified? Is the Commission right that personal data and privacy issues should and can be sufficiently addressed by a different set of rules? Second, is there an economic side to personal data and privacy relevant to competition that, therefore, can and should be taken into account when applying competition rules? How can this be done? Ultimately, these questions are about the intersections between competition and personal data (and related privacy matters) and about the necessity of a special regulatory (in a broad sense) response to them.

Herewith, the proposed paper intends to contribute to the important discussion on the interface between personal data and competition law in the context of the European Union. The paper assumes the competition law perspective and studies the value of personal data and its processing for digital economy and competition as well as the potential and limitations of the application of EU competition law to the (big) data related subject-matter. The selected topic is under-researched: only a handful of contributions exists. 

The paper adopts a case-based approach and focuses on the analysis of the existing relevant practice of the European Commission and the Court of Justice of the EU. It analyses the EU competition law framework drawing upon the relevant theoretical insights, especially regarding the application of competition law to broader policy objectives. Finally, the paper contrasts the European approach with the experience in the USA where the same cases were subject of antitrust scrutiny. The paper aims at mapping and assessing various interplay possibilities between personal data and competition law, on the basis of which different purposes of and challenges for the competition law application to the relevant subject-matter can be established. recommendations for policy-makers can be contemplated.

ABOUT THE AUTHOR

Olga Batura is a researcher at the Leuphana University of Lüneburg (Germany) and an associate professor at the European Humanities University in Vilnius (Lithuania). She received a PhD degree in law from the University of Bremen and master degrees in European law and public international law from the universities of Hamburg and Bremen. Her PhD thesis was on regulation of universal service in telecommunications markets by the EU and WTO. She also worked on various topics of trade in telecommunications, regulation of markets for electronic communications services, and competition law at the Collaborative Research Center “Transformations of the State” of the University of Bremen and at the University of Hamburg.

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Presentation given by Olga Batura