Data Privacy Protection as a Procompetitive Justification

Abstract

This article considers a new justification being invoked by defendants in rule of reason cases—the need to protect consumer data privacy. It examines the recent Epic Games, Inc. v. Apple Inc. decision, in which Apple justified its prima facie anticompetitive app store rules by demonstrating that the rules improved data privacy and security for consumers and enhanced interbrand competition.

It argues that privacy restraints are cognizable as a justification in antitrust law only when the impugned restraint also has procompetitive effects. It then applies this legal argument to two scenarios: a critique of the Epic v. Apple reasoning, and a hypothetical in which data privacy disclosure obligations improve market transparency and competition.

The article also considers the types of evidence that may be useful to courts and agencies in evaluating whether asserted privacy justifications are merely pretextual. Finally, it concludes by distinguishing the analysis of privacy as a justification from the separate legal question of whether privacy regulation may render conduct immune from antitrust law.

Keywords: antitrust, competition, privacy, data protection, data privacy, justification, rule of reason, technology, consumer protection, Apple, Epic, Fortnite