Market Definition and Free Online Services: The Prospect of Personal Data as Price

I/S: A Journal of Law and Policy for the Information Society, Vol.14:2 (2018) 227

56 Pages Posted: 30 Jul 2018 Last revised: 21 Sep 2018

See all articles by Magali Eben

Magali Eben

University of Glasgow; University of Leeds, Faculty of Education, Social Sciences and Law, School of Law, Students

Date Written: July 3, 2018

Abstract

The innovative new technology and business models of the new economy recurrently challenge established legal principles. In antitrust law, traditional tools of market definition, such as the price-based SSNIP test (small but significant non-transitory increase in price) cannot properly be applied as many online services are offered to a group of users for ‘free’. These issues are discussed in section I. It can be contested that a lack of monetary price truly means that a service is offered for free, as often users provide personal data when using the service. This paper puts forward the possibility of conceptualizing personal data as the price users pay for online services, for the purpose of market definition. To develop this thought experiment, the paper analyses the requirements personal data would have to meet to be considered as a price in section II. If users approach personal data as a medium of exchange, their sensitivity to increased demands of personal data could be used to measure demand-side substitutability. Section III assesses the extent to which personal data could be incorporated as the price in the SSNIP test, acknowledging both its limitations and its potential.

Keywords: antitrust, competition law, market definition, online service, free, personal data, price

JEL Classification: K21

Suggested Citation

Eben, Magali, Market Definition and Free Online Services: The Prospect of Personal Data as Price (July 3, 2018). I/S: A Journal of Law and Policy for the Information Society, Vol.14:2 (2018) 227. Available at SSRN: https://ssrn.com/abstract=3207201

Magali Eben (Contact Author)

University of Glasgow ( email )

Adam Smith Business School
Glasgow, Scotland G12 8LE
United Kingdom

University of Leeds, Faculty of Education, Social Sciences and Law, School of Law, Students ( email )

Leeds, LS2 9JT
United Kingdom

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