Personal Data Law and Competition Law – Where is it Heading?
Forthcoming (2018) 39 European Competition Law Review
20 Pages Posted: 31 Oct 2018 Last revised: 5 Nov 2018
Date Written: January 1, 2018
There are increasingly calls for competition regulators to incorporate the possession of personal data into their analyses of anticompetitive practices and behaviour. The point is that the control of large amounts of both commercial and personal data will give companies an unfair advantage over competitors. It is well settled that in the past commercial data has been used to create anticompetitive practices, which has allowed companies to capture a dominant position. However, it has only recently emerged that personal data is also being used as a tradable commodity that is placing entities in a position whereby they can use the data to bargain for a stronger position in the market, because they have exclusive access to personal data.
At issue is the competing forces between competition and personal data protection law. Competition law specifically looks at the behavior of individuals and organizations with regard to products, choice and price. On the other hand, data protection laws focus on protecting the privacy of the individual person’s – personal data that has been defined under national or supranational law. This protection has become necessary because more importantly, large amounts of personal data are being used in anticompetitive behavior and because organizations use their market power to take advantage of consumers and competitors. However, it is argued that competition and data protection laws do converge at a conceptual level, because these laws, to varying degrees, provide a level of consumer protection.
Moreover, anti-competitive behavior, from the collection, use and application of personal data can be traced to predominantly two different forms. Hence, two issues emerge the first is the personal data defined by law that is stolen or used without the consent of the data subject to enhance market power by corporations. The second corresponds to situations in which personal data, which is defined by law, and also captured by Internet systems and platforms, is used in a way that establishes a harm, resulting in economic inefficiency. For the purposes of this paper, anti-competitive behavior can be defined as personal data being harvested or mined, whether illegally or legally, to gain a dominant position in the market.
Keywords: personal data, unfair advantage, data protection law, competition regulators, anticompetitive practices, anticompetitive behaviour, consumer protection
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