Interplay of Data in Digital Economy and Merger Control Regime: A Conundrum without Solutions

Authors

DOI:

https://doi.org/10.26512/lstr.v14i2.41171

Keywords:

Digital Platforms. Data Concentration. Abuse of Dominance. Monetisation of Data. Third Party Tracking.

Abstract

[Purpose] The paper is an attempt by the authors to evaluate the feasibility of applicability of existing competition law framework to the growing platform economies and the resultant implications of personal data being collected by such entities.

[Methodology/approach/design] The present research is doctrinal in nature and the authors have adopted a comparative-analytical research methodology for evaluating the research questions. For the purpose of brevity, the authors have identified three research questions which shall form the basis of the research. Firstly, what is the inter-relation between the growing platform economy and merger control regime of a country. Secondly, what the possible avenues of concerns that may arise due to collection of personal data. Lastly, what are the possible enforcement challenges that would hampering the applicability of existing competition regimes to the digital platforms.

The authors have considered the jurisdictions of EU and India as the geographical scope for the research, whereas, the subject-matter scope of the present research is limited only to the facets of interaction between the merger control regime and the abusive conduct of a dominant enterprise in the arena of digital markets.

[Findings] The authors have made the following observations upon the conclusion of the study. First of all, the use and access of this data after the merger with companies with low turnover confer the acquiring enterprise a market power by which it can have an edge over its competitors in the market which will ultimately harm the competition in the market. Second, the digital market is data-driven, hence, collection of copious amounts of data, places the big-tech players in a position of control, allowing them indulge in exclusionary and exploitative conduct. Third, the assessment basis of combinations, more specifically in cases of data-driven mergers within the competition law needs a serious re-assessment, so as to include monetary value of data within the scope of assessment, as it is primary asset in such cases.

[Practical implications] The importance of this research lies in the acknowledgement accorded the issue and the existing loopholes with the current merger control framework concerning data-driven mergers. Hence, the assessment criteria provided within the paper for the data-driven mergers would effectively serve as a foundational study for the further evolution and development of a specific and concrete framework for regulating data-driven mergers.

Downloads

Download data is not yet available.

Author Biographies

Kritika Singh, National Law University, Jodhpur

Assistant Professor at the Faculty of Law, National Law University, Jodhpur (India). Ms. Singh specializes in Corporate Laws. Her primary research areas include Competition Law with specific focus on Merger Control and Competition Abuses by Dominant Enterprises, Corporate Governance, International Maritime Law. E-mail: kritika11oct@gmail.com. Address: F/10, National Law University, Jodhpur, NH-65, Mandore, Jodhpur, Rajasthan, India – 342304.

Sarthak Mishra, National Law University Jodhpur

Assistant Professor at the Faculty of Law, National Law University, Jodhpur (India). Mr. Mishra specializes in Corporate Laws. His primary research areas include Competition Law, Company Law, International Economic Laws with specific focus on International Investment Law and International Commercial Arbitration. E-mail: sarthak.mishra@nlujodhpur.ac.in.

References

Autorite de la Concurrence; Bunderkartellamt. (2016). Competition Law and Data.

Bania, K. (2018). The role of Consumer Data in Enforcement of EU Competition Law. European Competition Law Journal, 14, 38.

Batistic, S., & Laken, P. V. (2019). The History, Evolution, and Future of Big Data and Analytics: A Bibliometric Analysis of its Relationship to Performance in Organisations. Britain Journal of Management, 30(2), 229.

Boldyreva, E. (2018). Cambridge Analytica: Ethics and Online Manipulation with Decision Making Process. In V. Chernyavskaya, & H. Kube (Eds.), European Proceedings of Social and Behavioural Sciences (pp. 91-102).

Borgesius, F. Z., & Poort, J. (2017). Online Price Discrimination and EU Data Privacy Law. Journal of Consumer Policy, 40, 347.

Budzinski, O. (2017). Competition Rules for Digital Age - The Economy of Personalised Data, Consumer Protection and 9th Amendment to the GWB. Forum for Economic and Foreign Policy, 43(2), 221.

Colangelo, G., & Maggiolino, M. (2018). Data Accumulation and the Privacy-Antitrust Interface: Insights from the Facebook Case for the EU and U.S. TTLF Working Paper No. 31, § 4.2.

Competition Commission of India. (2020). Market Study on E-Commerce in India: Key Findings and Observations.

European Data Protection Board. (2018, August 27). Statement of EPDB on Data Protection Impacts on Economic Concentration. Retrieved April 22, 2021, from https://edpb.europa.eu/our-work-tools/our-documents/other-guidance/statement-edpb-data-protection-impacts-economic_en

European Data Protection Supervisor. (2014). Privacy and Competitiveness in the Age of Big Data: The Interplay between Data Protection, Competition Law and Consumer Protection in Digital Economy.

Evans, D. S., & Schmalensee, R. (2014). The Antitrust Analysis of Multi Sided Platform Businesses. In R. Blair, & D. Sokol (Eds.), Oxford Handbook on International Antitrust Economics (p. 404). Oxford University Press.

Ezrachi, A., & Gilo, D. (2009). The Darker side of the Moon: Assessment of Excessive Pricing and Proposal for a post-entry Price Cut Benchmark. In A. Ezrachi (Ed.), Article 82 EC: Reflection on its Recent Evolution (p. 169). Hart Publishing.

Ezrachi, A., & Robertson, V. (2019). Competition, Market Power and Third Party Tracking. World Competition, 42, 5.

Fox, L. (2017, September 26). Trivago acquires Tripl for Personalisation Drive: Phocus Wire. Retrieved April 19, 2021, from https://www.phocuswire.com/Trivago-acquires-Tripl-for-personalisation-drive

Hern, A. (2018, May 06). Cambridge Analytica: How did it Turn Clicks into Votes? Retrieved April 20, 2021, from The Guardian: https://www.theguardian.com/news/2018/may/06/cambridge-analytica-how-turn-clicks-into-votes-christopher-wylie

Kalimo, H., & Mejcher, K. (2017). The Concept of Fairness: Linking EU Competition and Data Protection Law in Digital Market Place. European Law Review, 42, 210.

Kerber, W. (2016). Digital Markets, Data and Privacy: Competition Law, Consumer Law and Data Protection. Intellectual Property Law and Practice, 11, 856.

Korber, T. (2017). Conceptual Recording of Digital Platforms and Adequate Regulatory Strategies. Journal of Copyright and Media Law, 21, 93.

Lerner, A. V. (2014). The Role of Big Data in Online Platform Competition. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=24 82780

Malgieri, G., & Custers, B. (2018). Pricing Privacy - The Right to know the value of your Personal Data. Computer Law and Security Review, 34, 289.

Mauro, A. D. (2016). A Formal Definition of Dig Data based on its Essential Features. Library Review, 65(3), 122.

O' Neill, S. (2017, October 4). Trivago makes a Tech Acquisition that bolsters an Industry Trend: Skift. Retrieved April 19, 2021, from https://skift.com/2017/10/04/trivago-makes-a-tech-acquisition-that-bolsters-an-industry-trend/

OECD. (2013). Exploring the Economics of Personal Data: A Survey of Methodologies for Measuring Monetary Value. OECD Digital Economy Papers No. 220.

OECD. (2016). Bringing Competition Policy to the Digital Era.

OECD. (2017). Summary of Discussion of Hearing on Big Data. OECD.

Peyer, B. H. (2017). EU Merger Control and Big Data. Journal of Competition Law & Economics, 13(4), 767.

Porche, I. R. (2014). Big Data: Challemges and Opportunities. Rand Corporation.

Purra, J., & Carlsson, N. (2016). Third-Party Tracking on the Web: A Swedish Perspective. IEEE 41st Conference on Local Computer Networks. Linkoping, Sweden: Linkoping University Press.

Schafer, M. T., & Van Es, K. (Eds.). (2017). The Datafied Society: Studying Culture through Data. Amsterdam University Press.

Schepp, P., & Wambach, A. (2016). On Big Data and its Relevance for Market Power Assessment. Journal on European Competition Law and Practice, 7(2), 120.

Sokol, D., & Comerford, R. (2016). Antitrust and Regulating Big Data. Georgetown Mason Law Review, 23, 1129.

Sokol, D., & Comerford, R. (2017). Does Antitrust have a Role to Play in Regulating Big Data? In R. D. Blair, & D. Sokol (Eds.), The Cambridge Handbook of Antitrust, Intellectual Property and High Tech (p. 293). Cambridge University Press.

Srinivas, I. (2019). Report of the Competition Law Review Commission.

Stucke, M. E. (2018). Should we be concerned about Data-opolies? Georgetown Law Technology Review, 2(2), 275.

Stucke, M. E., & Ezrachi, A. (2016). When Competition fails to Optimise Quality - A Look at Search Engines. Yale Law Journal, 18, 70.

Stucke, M. E., & Ezrachi, A. (2018). How Digital Assistants can harm our Economy, Privacy and Democracy. Berkeley Technology Law Journal, 32(N/A), 1239.

Stucke, M. E., & Grunes, A. P. (2015). Debunking the Myths over Big Data and Antitrust. Antitrust Chronicle, 5.

Wasastjerna, M. C. (2018). The Role of Big Data and Digital Privacy in Merger Review. European Competition Journal, 14(2-3), 417.

Zingales, N. (2017). Between a Rock and Two Hard Places: WhatsApp at the Crossroad of Competition, Data Protection and Consumer Law. Computer Law and Security Review, 33, 553.

Downloads

Published

2022-10-13

How to Cite

SINGH, Kritika; MISHRA, Sarthak. Interplay of Data in Digital Economy and Merger Control Regime: A Conundrum without Solutions. Law, State and Telecommunications Review, [S. l.], v. 14, n. 2, p. 17–37, 2022. DOI: 10.26512/lstr.v14i2.41171. Disponível em: https://periodicos.unb.br/index.php/RDET/article/view/41171. Acesso em: 29 mar. 2024.