The Antitrust Privacy Dilemma

Abstract

Antitrust cases related to privacy are on the agenda of many competition authorities worldwide, including Europe, the United States, the United Kingdom (the UK), India, Turkey, Germany, and France. Antitrust and privacy is thus "one of the big topics of the year," as stated by the former President of the French competition authority, Isabelle de Silva. Whereas some antitrust cases concern a reduction in privacy protection, other concern an increase in privacy protection. In other words, user privacy can decrease or increase as the result of alleged anticompetitive practices. An antitrust privacy dilemma? From a law and economics standpoint, the paper solves this antitrust privacy dilemma and puts forward a new way of resolving antitrust cases related to privacy. Section II analyzes the dilemma. It proposes an analytical framework to identify where data protection strategies should be considered pro or anticompetitive strategies. Section III proposes a new way of resolving cases. It suggests a coordinated participative approach with competition and non-competition regulators and stakeholders to address competition and privacy concerns with tailored remedies to what is necessary without eliminating pro-privacy effects.

Keywords: Privacy, competition, digital competition, digital regulation, competition law and economics, digital economy, antitrust

JEL Classification: K21, L1, L4, L5, L86