By Laureline Lemoine

This is the first article in a series dealing with competition law and Big Tech. The aim of the series is to look at what competition law has achieved when it comes to protecting our digital rights, where it has failed to deliver on its promises, and how to remedy this.

This series will first look at how competition and privacy law interact, to then focus on how they can support each other in tackling data exploitation and other issues related to Big Tech companies. With a potential reform of competition rules in mind, this series is also a reflection on how competition law could offer a mechanism to regulate Big Tech companies to limit their increasing power over our democracies.

Our personal data is seen by Big Tech companies as a commodity with economic value, and they cannot get enough of it. They track us online and harvest our personal data, including sensitive health data. Data protection and online privacy legislations aim to protect individuals against invasive data exploitation. Even though well-enforced privacy and data protection legislation are a must-have in our connected societies, there are other avenues that could be explored simultaneously. Because of the power imbalance between individuals and companies, as well as other issues affecting our fundamental rights, there is a need for a more structural approach, involving other policies and legislation. Competition law is often referred to as one of the tools that could redress this power imbalance, because it controls and regulates market power, including in the digital economy.

During her keynote speech at the International Association of Privacy Professionals (IAPP) conference in November 2019, Margrethe Vestager, European Commissioner for Competition and Executive Vice-President for A Europe Fit for the Digital Age, argued that, “[…] to tackle the challenges of a data-driven economy, we need both competition and privacy regulation, and we need strong enforcement in both. Neither of these two things can take the place of one another, but in the end, we’re dealing with the same digital world. Privacy and competition are both fundamentally there for the same reason: to protect our rights as consumers”.

Privacy and competition law are different policies

Competition and privacy law (which includes data protection and online privacy legislations) are governed by different legal texts and overseen by different authorities with distinct mandates.

According to Wojciech Wiewiórowski, the European Data Protection Supervisor (EDPS), “the main purpose of these two kinds of oversight is […] very different, because what the competition authorities want to achieve is the well-working fair market, what we want to achieve is to defend the fundamental rights [to privacy and data protection]”.

This means that, in assessing competition infringements, competition authorities do not go beyond competition issues. They have to assume that companies are or will be in compliance with their other legal obligations, including their privacy obligations.

The Court of Justice of the European Union confirmed this difference of mandates in 2006. In the Facebook/WhatsApp merger case, the Commission concluded that privacy-related concerns “do not fall within the scope of the EU competition law rules but within the scope of the EU data protection rules”. Facebook was later fined for “misleading” the competition authority.

Since then, Europe has seen the development of a data-driven economy and its fair share of privacy scandals and data breaches, too. And despite numerous investigations into problematic behaviours, Big Tech companies keep on growing.

But this goes far beyond competition issues, as the dominant position of Big Tech companies also gives them the power and the incentive to limit our freedoms, and to infringe on our fundamental rights. Their dominance is even a threat to our democracies.

As a way to tackle these issues, more people are calling for the alignment of enforcement initiatives of data protection authorities as well as competition and consumer authorities. This has led to debates about the silos between competition and data protection law, their differences but also their common objectives.

Data protection and competition against Big Tech powers

Both competition and data protection law impact economic activities and, at EU level, both are used to to ensure the further deepening of the EU single market. The General Data Protection Regulation (GDPR), as well as ensuring a high level of the protection of personal data, aims to harmonise the Member States’ legislations to remove obstacles to a common European market. Similarly, competition law prevents companies from enacting barriers to trade between competitors.

Moreover, data protection can be considered as an element of competition in cases where companies compete for who can better satisfy privacy preferences. There is, in this case, a common objective of allowing the individual to have control (as a consumer or as a data subject).

In her keynote speech, Vestager explained: “competition and competition policy have an important role to play … because the idea of competition is to put consumers in control. For markets to serve consumers and not the other way around,” she said, “it means if you don’t like the deal we’re getting, we can walk away and find something that meets our needs in a better way. And consumers can also use that power to demand something we really … care about, including maybe our privacy.”

Indeed, giving consumers a genuine choice to use privacy-friendly companies would help uphold standards in terms of privacy. Although now it is hard to believe, once upon a time Facebook prioritized privacy as a way to distinguish itself from MySpace, its biggest competitor back then.

However, the issue in the world of Big Tech today is that privacy is not a leverage. The dominant positions of the few players controlling the market leave no room for others proposing privacy-friendly products. As a result, there is no other choice but to use the services of Big Tech to stay connected online – the consumer is no longer in control.

One way to remedy this power imbalance between individuals and these giant companies could be through a greater cooperation between regulatory authorities. BEUC, the European Consumer Organisation, has called, regarding Facebook’s exploitation of consumers, for a “coherent enforcement approach for the data economy between regulators and across Member States” and wants the “European Commission to explore – with relevant authorities – how to deal with a concrete commercial behaviour that simultaneously breaches different areas of EU law”.

In 2016, The EDPS launched the Digital Clearinghouse, a voluntary network of regulators involved in the enforcement of legal regimes in digital markets, with a focus on data protection, and consumer and competition law. National competition authorities are also looking into competition and data, while in 2019, the European Commission published a report on Competition Policy for the Digital Era, to which EDRi member Privacy International contributed.

Greater cooperation between regulators, inclusion of data protection principles in competition law, and many other ideas are being discussed to redress this issue of power imbalance. Some of them will be explored in the next articles of this series.

Regarding antitrust law, we will look at discussions regarding new sets of rules designed especially for the Big Tech market, as well as the development of the right to portability and interoperability. As for merger control, we will focus on to what extent privacy could be considered as a theory of harm.

Opinion 8/2016 – EDPS Opinion on coherent enforcement of fundamental rights in the age of big data (2016)
https://edps.europa.eu/sites/edp/files/publication/16-09-23_bigdata_opinion_en.pdf

Competition and data
https://privacyinternational.org/learning-topics/competition-and-data

Factsheet – Competition in the digital era (2020)
https://www.beuc.eu/publications/beuc-x-2020-007_competition_in_digital_era.pdf

Report of the European Commission – Competition Policy for the digital era (2019)
https://ec.europa.eu/competition/publications/reports/kd0419345enn.pdf

Family ties: the intersection between data protection and competition in EU Law (2017)
http://eprints.lse.ac.uk/68470/7/Lynskey_Family%20ties%20the%20intersection%20between_Author_2016_LSERO.pdf