ERA, Brussels, 24 September 2015

Competition rebooted: Enforcement and personal data in digital markets

Alfonso Lamadrid

1. Setting the scene - why are we here?

2. The broader substantive (non?) issues

3. Nothing new under the sun

4. Data as a barrier to entry

5. Abuse of dominance: could data be used to foreclose competitors and exploit customers?

6. Should competition enforcers foster privacy as a parameter of competition?

Contents

• Data has always been around: novelty is exponential improvement of ability to collect, 4 Vs (volume, velocity, variety, value), potential uses, surge of business models based on it (online and offline)

• Isolated few cases (GAFA) contaminate competition law debate

• Enormous pros, but also some concerns

• Competition authorities aware of potential of big data (only need to see recent RFIs…)

• Perceived gaps in regulation lead some to consider antitrust as alternative instrument (not new either)

• Application of competition law vs. use of competition law vs. instrumentalisation of competition law

1. Setting the scene - why are we here?

• Data in competition law raises mainly two (of the oldest) issues:

– Personal data Privacy issues (Should we factor in considerations alien to competitive ones? Goals of competition law?)

– Big Data Scale/Network effects (Is scale a good or a bad thing? How do we deal with it?)

• Data increasingly important (esp. in two-sided markets), but ultimately just an asset

• Privacy can also be a parameter of competition

• Precedents show this is how the EC (Google/DoubleClick, Facebook/Whatsapp, Publicis/Omnicom) and the Courts (Asnex/Equifax) see it

2. The broader substantive (non?) issues

• Like many tech-related issues (incl. two-sided markets debate), old issues keep reappearing, only exacerbated – see A. Lamadrid, “

The double duality of two-sided markets”

Does the emergence of big data mean that competition law should scrutinize it as an important asset? Sure

Does the emergence of big data mean that competition law needs to change? No- If there is a competition issue, then it is a factor; if not, it is not.

3. Nihil novi sub sole

• Can data be a barrier to entry? Sure, but not necessarily

• Depends on whether: it is replicable, tradeable (affordable), unique, exclusive, important (also over time).

• Substitutes may exist (even if imperfect):

– multi-homing

– different data in different layers: Telefonica/O2/Everything Everywhere (2012)

• Importantly: does the advantage really lie only in volume?

– Companies also compete in what data to pick, how to collect and process it, and how to use it

– Possible diminishing returns

4. Data as a barrier to entry

• Distinguish exploiting market power (anticompetitive) from exploiting talent or intelligence (“skill, foresight and industry”)

• Disregard of privacy interests as an exploitative abuse?

• Breach of privacy regulations?

• Unfair Trading conditions?

• Exclusivity? Perhaps - Portability restrictions

• Leveraging? Maybe, but anticompetitive?

• Refusal to deal? Highest threshold in competition law, and for a reason.

– No horizontal duty to deal under EU comp law.

– Data assimilated to IPRs?

5. Abuse of dominance: could personal information and Big Data be used to foreclose competitors and exploit customers?

• Competition law is about preserving incentive and ability to compete, not about fine tuning markets benefits expect in terms of consumer welfare

• Many more important objectives in life, and in public policy, but not competition law’s to solve

• Privacy law is about ensuring individuals have control of their own data (quote Preamble Directive)

• Query 1: As a policy matter, should we intervene even if consumers don’t care?

• Query 2: Who should intervene?

– Markets? Legislators and regulators? Competition authorities?!

• The gap (if any) does not lie in competition law not reaching where it should, but on data protection law lacking adequate regulation and remedies= Otherwise risk of deforming competition law.

6. Should privacy be a standalone objective of EU Competition Law?

Further reading

http://chillingcompetition.com/2013/02/25/data-protection-and-antitrust-law/ http://chillingcompetition.com/2014/06/03/on-privacy-big-data-and-competition-law-post-12/

http://chillingcompetition.com/2014/06/06/on-privacy-big-data-and-competition-law-22-on-the-nature-goals-means-and-limitations-of-competition-law/

Alfonso LamadridBRUSSELS

E.U. & Competition Law

alfonso.lamadrid@garrigues.com