Big data: changing the essential concept of (antitrust) law
Jacques Moscianese, Irene de Angelis, Fabrizio Di Benedetto[1]
Big data has become a hot topic for antitrust law. Although at present the actual impact of big data on competition among undertakings is not clear enough, many authorities have already started to looking at the economic activities that are more influenced by big data, in particular those organized as multi-sided platform such as on-line marketplace and social media.
In February 2016, the French and the German antitrust authorities published a joint paper on big data in competition [2]. The Italian authority has just launched its first inquiry on big data[3]. Again, the French authority has initiated an investigation in May 2016 on on-line advertising[4]. Moreover, many big data-related issues have arisen during the e-commerce sector inquiry of the European Commission[5].
Big data can be seen as a source of market power and, consequently, as a possible field of abuse for undertakings in dominant position. Also, in the application of big data-related technologies (such as pricing-algorithms) might be room for collusion among competitors. Moreover, big data owned entirely by a single company may increase barriers to the entry of new players in a relevant market[6].
Furthermore, big data is changing the way we see some basic concepts of competition law. Indeed, although the narrow definition of essential facility provided by the European Court of Justice, some authors are beginning to argue that – on a case-by-case analysis – big data can be regarded as an essential facility, at least in some specific sectors (i.e. on-line advertising)[7].
Big data is also at the heart of a public debate on the relation between competition and data protection. In fact, while some argue that privacy is a competition issue (especially on the American side of the Atlantic), others consider privacy policy related to big data as an element inherent to the special responsibility of dominant undertakings (especially in Germany). Although it is still clear that (at least in the European Union) privacy as such is not a competition issue, nobody is claiming that data protection and privacy are totally excluded by antitrust analysis.
At present, big data are central in an enforcement action conducted by the German antitrust authority against Facebook. The authority suspects that Facebook’s privacy policies may infringe data protection rules and “[i]f there is a connection between such an infringement and market dominance, this could also constitute an abusive practice under competition law”[8]. That won’t be an easy task for the German authority[9].
Indeed, not only the qualification of an abuse will be difficult in the Facebook case, but also the identification of the market on which Facebook hold a dominant position will be challenging, given that many services provided by Facebook are performed for free, without a monetary remuneration. Indeed, as recently argued by the Chairman of the Italian Antitrust Authority, those are services “remunerated” with users’ personal data[10]. In this regard, as stated in 2015 by the Higher Regional Court of Düsseldorf when a service is performed for remuneration on one side, but at no cost on the other side, only the remunerated side is part of a market. Thus, according to the German court, only the remunerated services constitute an economic activity subject to competition law[11]. Obviously, this position of the German judge has received different critics, in Germany and abroad[12].
Indeed, big data is a big challenge not only for competition rules but more generally for the entire legal system. It is undeniable that big data-related services performed for freecall into question essential concepts of private law such as the definitions of remuneration and market. While wondering on the ability of the current legal framework to cope with big data-related issues, perhaps it would be worth starting from a reviewed concept of market, as the cornerstone of any consideration on fair competition and, more broadly, on level playing field.
[1]The authors work at Intesa Sanpaolo Group. However, opinion expressed here does not necessarily reflects those of the Group.
[2] Competition Law and Data, 10th May, 2016, http://www.bundeskartellamt.de/SharedDocs/Publikation/DE/Berichte/Big%20Data%20Papier.pdf?__blob=publicationFile&v=2.
[3] Cfr. http://www.agcm.it/stampa/comunicati/8781-ic53-avviata-indagine-conoscitiva-sui-big-data.html.
[4] Cfr. http://www.autoritedelaconcurrence.fr/user/standard.php?id_rub=630&id_article=2780.
[5] Cfr. http://ec.europa.eu/competition/antitrust/sector_inquiries_e_commerce.html.
[6] In this regard, see G. Pitruzzella, Big Data and Antitrust Enforcement, in Italian Antitrust Review, n. 1, 2017, pages 77-86, and B. Lasserre, A. Mundt, Competition Law and Big Data: The Enforcers’ View, in Italian Antitrust Review, n. 1, 2017, pages 87-103.
[7] See G. Pitruzzella, cit., pages 79-80.
[9]See G. Colangelo, M. Maggiolino, Big Data, Data Protection and Antitrust in the Wake of the Bunderskartellamt Case Against Facebook, in Italian Antitrust Review, n. 1, 2017, pages 104-112 (109-110).
[10] See G. Pitruzzella, cit., page 78.
[11]See German Antitrust Authority, https://www.bundeskartellamt.de/SharedDocs/Entscheidung/EN/Entscheidungen/Kartellverbot/B9-121-13.pdf?__blob=publicationFile&v=2, para. 141.
[12] See American Bar Association, https://www.americanbar.org/content/dam/aba/administrative/antitrust_law/at_comments_salsil_20160815.authcheckdam.pdf, page 11.