Data-Powerful

Abstract

Individual vulnerability has triggered a vivid debate in the data protection field. However, the efforts to define and protect vulnerable individuals in data protection law (building on a blurred notion of “data power” imbalance) appear still incomplete, under both a theoretical and a practical point of view. Moreover, the scholarly literature has rarely explored whether competition law can contribute to this vulnerability discussion. Therefore, the research question of this paper is: can competition law have a role in the definition of vulnerable individuals? The consequent question is how the notion of power in competition law can complement data protection law in the definition and protection of individual vulnerabilities.

Although the analysis of power in the data protection discussion is relevant, existing data protection laws seem more focussed on the individual perspective of data subjects’ vulnerability, while the analysis of companies’ “power” can be better performed through other legal frameworks, in particular competition law. Moreover, analysing power dynamics and vulnerability exploitation dynamics from merely one perspective – e.g. the data protection perspective – brings the risk of circular definitions: if data subjects’ vulnerability is defined merely as power imbalance and power imbalance is defined merely as the possibility to exploit data subjects’ vulnerability, it would be difficult to interpret and contextualize these theoretical definitions in practice.

That is why this paper proposes an intersectoral approach to power dynamics: data protection law and consumer law are clearly necessary elements to analyse vulnerability and power, but competition law has a robust jurisprudence on the notion of power. In addition, competition law perspective is complimentary to data protection and consumer law approaches: the first is company based, the second is individual based. But the horizon is the same: protecting the welfare of the “powerless” against unfair abuses of the “powerful”. The recent German Antitrust Authority decision against Facebook is relevant, but we observe also similar national cases. We defend that, by building over the two approaches to power, and on their different focus (market vs. individuals), a broader understanding of the nature of disparity and exploitation can be reached. Consquently, this paper preliminary proposes a conceptual definition of power based on “choice architectures” and “incentive structures”.

Keywords: Data Power, Vulnerable Data Subjects, Competition Law, Data Protection Law, Market Power