Excessive Data Collection: Privacy Considerations and Abuse of Dominance in the Era of Big Data

Abstract

The digital economy challenges many of the basic assumptions of competition law. With the rise of big data and big data analytics, one question has become particularly pressing: to what extent should privacy considerations and data protection laws filter into competition law assessments? The present paper focuses on personalized user data that companies gather online through third-party tracking. This practice allows the tracker to build comprehensive user profiles across platforms and across devices, resting an unprecedented volume of up-to-date personal data in the hands of a small number of globally active companies. Starting from the question whether and to what extent competition law should be concerned about privacy, the paper addresses the question whether the vast amounts of data gathered by certain companies through third-party tracking may be deemed excessive under Article 102(a) TFEU, thus making an analogy with excessive prices possible. It is also considered whether excessive data collection may constitute a stand-alone abuse under the heading of unfair trading conditions, based on a decrease in quality or the mere excessiveness of the personal data gathered. In this context, the paper discusses the recent German Facebook decision as a test case for excessive data collection.

Keywords: abuse of dominance, competition law, consumer welfare, data concentration, data protection, digital economy, market power, privacy, third-party tracking

JEL Classification: D42, D43, K21, K42, L41, O30