Assessing Data Access Issues in Online Platforms

Telecommunications Policy 2015, Vol. 39, No. 5, p. 375-387

22 Pages Posted: 20 Aug 2015

See all articles by Inge Graef

Inge Graef

Tilburg Law School

Yuli Wahyuningtyas

KU Leuven - Centre for IT & IP Law (CiTiP)

Peggy Valcke

KU Leuven - Centre for IT & IP Law (CiTiP); European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS); Bocconi University Milan

Date Written: August 19, 2015

Abstract

Online platforms have the characteristics of a particular type of market known as ‘multi-sided’. These businesses create value by bringing advertisers and users together. Access to user data is critical to this process. On the basis of economic literature, the features of multi-sided platforms will be discussed. It will be argued that the characteristics of multi-sided platforms increase the likelihood that successful companies become dominant due to the existence of indirect network effects. In these circumstances, dominant platforms may foreclose competition by raising barriers to entry in the large collections of user data. This may give rise to access problems for competitors and new entrants that need access to data gathered by dominant platforms in order to provide competing or complementary services. A comparative legal analysis will be used to assess the standards that apply in the United States (US) and the European Union (EU) for finding liability for refusals to deal under antitrust or competition law. The private antitrust cases that have already occurred regarding access to user data in the US show that the scope of applicability of the essential facilities doctrine is very limited after the judgment of the Supreme Court in Trinko. Although the European Commission and the Court of Justice seem to be willing to accept liability for a refusal to deal more easily than their US counterparts, high legal hurdles still have to be met under the essential facilities doctrine in the EU. Nevertheless, there are scenarios in which liability for refusals to give access to data will likely be accepted in the EU.

Keywords: Multi-sided platforms; competition law; access regulation; user data; essential facilities; search engines; online social networks; e-commerce platforms

Suggested Citation

Graef, Inge and Wahyuningtyas, Yuli and Valcke, Peggy, Assessing Data Access Issues in Online Platforms (August 19, 2015). Telecommunications Policy 2015, Vol. 39, No. 5, p. 375-387. Available at SSRN: https://ssrn.com/abstract=2647309

Inge Graef (Contact Author)

Tilburg Law School ( email )

Tilburg, 5000 LE
Netherlands

Yuli Wahyuningtyas

KU Leuven - Centre for IT & IP Law (CiTiP) ( email )

Sint-Michielsstraat 6
Leuven (Belgium), 3000
Belgium

Peggy Valcke

KU Leuven - Centre for IT & IP Law (CiTiP) ( email )

Sint-Michielsstraat 6 box 3443
Leuven, 3000
Belgium

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS) ( email )

Villa La Fonte, via delle Fontanelle 18
50016 San Domenico di Fiesole
Florence, Florence 50014
Italy

Bocconi University Milan ( email )

via Roentgen 1
Milan, Milan 20100
Italy

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