Digital Crossroads: The Intersection of Competition Law and Data Privacy

Abstract

Antitrust and data privacy law are powerful forces shaping our economy. Scarcely a day goes by without headline-making enforcement from one regime or the other. The result is a wealth of new interactions between these areas of law—particularly in the digital economy.

This report, Digital Crossroads: The Intersection of Competition Law and Data Privacy, was written for the Global Privacy Assembly (GPA) Digital Citizen and Consumer Working Group. It seeks to identify and understand the interactions between antitrust and data privacy law around the world, drawing on the public perspectives of the agencies who enforce each area of law. It is based on a review of over 200 agency-related documents, including the relevant law, policy reports, guidance, speeches, market studies and litigation filings from numerous jurisdictions.

The Report describes the nascent, varied and complex interactions appearing between these two legal realms. Though often described simply as complementary, the relationship between antitrust law, competition itself and data privacy is often much more nuanced and multi-faceted. In some areas, like merger review, new theories are taking hold that account for data privacy. In others, like antitrust remedies, there is only a nascent sense that the two realms may intersect. There remains significant room for development of theory and practice across this landscape of antitrust law and data privacy.

The goal of this Report is to deepen the shared understanding of antitrust and data privacy authorities regarding the many interactions between their domains. This is a rapidly evolving area of law and policy, with great significance to consumers. It demands attention and cooperation across agency bounds to develop cohesive, effective digital enforcement strategies. The hope is that this Report will contribute to that cross-doctrinal understanding, and prompt agencies to develop shared theories, collaboration and best practices at this new digital crossroads.

Keywords: competition, privacy, data privacy, antitrust, digital, abuse of dominance, merger, agency, enforcer, data portability, data protection