Competition Policy Implications of Online Platforms, Big Data, and Privacy

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This symposium delves into the intersection of online platforms, big data, and privacy within the realm of competition policy. Discussions revolve around the challenges posed by data in competition law, market power dynamics influenced by data, and the efficiency gains linked to big data across various sectors.

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Online platforms, Big Data and privacy: what role for competition policy? VUB Symposium 23 June Alfonso Lamadrid

1. Setting the scene - why are we here?

2. Do competition authorities know how to do it? EDPS report on Privacy, Consumers, Competition and Big data (June 2014) Facebook/Whatsapp decision (October 2014) Platform regulation debate (2015-2016) Opening of Facebook abuse case in Germany (March 2016) Joint German-French report on Competition and Big Data (May 2016) What s next??

3. The broader substantive (non?) issues Data in competition law raises mainly two (of the oldest) issues: Personal data in considerations alien to competitive ones? Goals of competition law?) Privacy issues (Should we factor Big Data or a bad thing? How do we deal with it?) Data increasingly important (esp. in two-sided markets), but ultimately just an asset (all assets special in their own way) Competition law has the flexibility, tools, experience and habit to deal with any issue (if those ever came up) Scale/Network effects (Is scale a good

4. Market definition & Market power Can data be a barrier to entry? Bain v Stigler notions of barrier It might, but not necessarily Market definition Challenges inherent to multi-sidedness Dynamic considerations A relevant data market? (dissent in FTC s Google/DoubleClick) = Proposal akin to running cases on sand, not chipsets ! Can date be a source of market power? Plausible (e.g. Thomson/Reuters) but how likely? On the facts, not in abstract Depends on whether it is replicable, tradeable (affordable), unique, exclusive, important (also over time), viable scale, possible diminishing returns, etc. Not just useful, but indispensable: Substitutes may exist (even if imperfect) (e.g. multi- homing + different data in different layers: Telefonica/O2/Everything Everywhere (2012)). Size it s not what matters, it s how you use it! Companies also compete in what data to pick, how to collect and process it, and how to use it talent- intelligence= skill, foresight and industry

5. Efficiencies Widely acknowledged that big data can result in: improvements to products or services; exploitation of new business opportunities; more target-oriented business models; often provides services that are free to consumers Big data and analysis increase economic output, reduce crime, improve public health and safety, increase voter turnout, boost energy efficiency, improve weather forecasts,and enhance agricultural yields (Tucker &Wellford,2014). Accross all sectors: healthcare, scientific research, intelligence/security, smart cities, etc. Challenge: how do we account for efficiencies in legal assessment?

6. Competition law risks? General conjectures about how established theories could apply in extreme cases (same logic that applies to other assets) - Refusal to deal/ essential facility ? - Used as buzzword, but highest standard for intervention in EU competition law - Discriminatory access to data? - Exclusivity? - Data as a vehicle for (anticompetitive?) price discrimination? - Data as a facilitator of technological collusion ? (case C-74/14, Eturas) - Data protection as element of non-price competition - Unfair Trading conditions? Breach of privacy regulations? (Facebook German case)?

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/ https://chillingcompetition.com/2016/03/02/facebook-privacy-and-article-102-a-first- comment-on-the-bundeskartellamts-investigation/ https://chillingcompetition.com/2016/01/22/ecjs-judgment-in-case-c-7414-eturas-on- the-scope-of-concerted-practices-and-on-technological-collusion/