Reuben Binns and Elettra Bietti ‘Acquisitions in the Third-Party Tracking Industry’

This working paper, which can be found here , draws attention to one particularly complicated kind of digital data intensive industry: third party tracking, in which a firm does not (only or primarily) collect and process personal data of its own customers or users, but focuses instead on collecting data of users of other ‘first party’ services. The authors focus on mergers and acquisitions of third-party tracking firms because they raise some unique challenges which are often missed in regulatory decisions and academic discussions of data and market concentration. The paper is structured as follows: Section 1 contains a brief overview of the technical elements of third party tracking and of the business practices associated with it. This description is somewhat long because it provides a good overview of these business practices; you may want to skip it if you are familiar with them. ‘Tracking’ refers to a range of data collection and processing practices which aim to collate the behaviours…

Marco Botta and Klaus Wiedemann ‘EU Competition Law Enforcement vis-à-vis Exploitative Conducts in the Data Economy’ Max Planck Institute for Innovation & Competition Research Paper No. 18-08

This long paper (90 pages), which can be found here, seeks to understand how traditional principles of EU law – particularly those related to exploitative abuses and respective remedies – apply to new business models that mainly rely on processing large amounts of users’ data. The analysis does not extend to the US because, following Trinko, the authors consider that antitrust law there does not extend to exploitative practices, even if the FTC has powers under the Sherman Act to pursue such practices under consumer and unfair practices law. I am afraid the review is rather long, because this paper’s contents are the equivalent of multiple articles. The paper is structured as follows: Section 2 provides an overview of European case law vis-à-vis exploitative abuses. Art. 102 TFEU lists a number of exploitative abuses. Nevertheless, the European Commission has long focused on investigating exclusionary, rather than exploitative abuses. While this has led to limited case law on exploitative abuses, the authors identify…

Ariel Ezrachi on ‘EU Competition Law Goals and The Digital Economy’ (2018) Report for BEUC – The European Consumer Organisation

This paper  can be found here. I have already reviewed it in an earlier post. At the time, I focused on the article’s overview of the goals of EU competition law. However, the article also contained a detailed discussion of the impact that the digital economy may have on these goals. I was unable to review this discussion then, so I propose to do it here. Competition policy is one of several instruments used to advance the goals of the European Treaties. According to the European Commission, competition on the market is protected as a means of enhancing consumer welfare and of ensuring an efficient allocation of resources. This notwithstanding, EU competition law has also consistently been held to protect ‘not only the interests of competitors or of consumers, but also the structure of the market and, in so doing, competition as such.’ Moreover, a genuinely indigenous objective is worthy of note, namely that of promoting European market integration. In addition…

Kenneth A. Bamberger and Orly Lobel ‘Platform Market Power’ (2018) 32 Berkeley Tech. L.J. 1051

In this paper – which can be found here – the authors seek to develop a framework for considering the market power of platform companies that use digital technology to connect a multisided network of individual users. Throughout, they use Uber as an example.  The framework identifies a number of questions that may be helpful in assessing whether a platform has market power. The first question one should ask is whether the success of a platform is a result of innovation or of undesirable regulatory arbitrage. The authors argue that understanding the net impact of digital platforms requires careful inquiry into the gains arising from the entry of platforms into mature markets and their disruption of staid industries; and to the harm they may pose to regulatory protections set out to protect valuable social goods. This means that antitrust law cannot be asked to answer – as it has been asked to do by some authors – questions of regulatory…

Inge Graef  ‘Algorithms and fairness: what role for competition law in targeting price discrimination towards end consumers?’

This paper – which can be found here –  tries to identify when algorithmic price discrimination will be anticompetitive. Price discrimination is not per se unlawful or anticompetitive; on the contrary, price discrimination  may be efficient and lead to increased output. However, personalised pricing is commonly felt to be unfair – and it is undisputed (in Europe, at least) that some forms of price discrimination can be anticompetitive. This paper seeks to distinguish between those situations when algorithmic price discrimination is anticompetitive and those in which it is not. The paper is structured as follows: Section 2 looks at how price discrimination can harm competition. Two types of harm are identified: (i) primary line injury occurs where the supplier’s conduct discriminates against competitors in markets in which the supplier also operates; and (ii) secondary line injury takes place when a supplier discriminates between a number of its customers as against one another. While behaviour giving rise to primary line injury…

Giuseppe Colangelo and Mariateresa Maggiolino ‘Data Protection in Attention Markets: Protecting Privacy through Competition?’ (2017) 8(6) 363

This paper – which you can find here – asks whether it is possible to protect privacy through competition. The paper begins from the observation that we are witnessing the advent of many businesses dedicated to offer zero-price services in exchange for advertising revenues and data. While not completely new – old media companies had similar business models –, these new businesses benefit from “new” digital technologies to collect, store and analyse huge amounts of users’ data. Thus, it is unsurprising that user data are now conceptualized as the currency for the many services and products that users find on the Internet at zero-price. Given this, the question the authors seek to address is “whether and how EU competition law could be enforced as a substitute of EU data protection law.” At this point, I must ask you to moderate your screams of “sacrilege”, appropriate as they may be for the festive season, and give the article a chance. The paper and its…

Wolfgang Kerber ‘Digital markets, data, and privacy: competition law, consumer law and data protection'(2016) Journal of Intellectual Property Law & Practice 11(11) 856

This is a paper on the economics of privacy that focuses more specifically on the role of privacy in competition law assessments. It can be found here. The paper claims that it is not sufficient to design policy solutions focused on a single field of the law, e.g. competition law or data protection law. Rather, an integrated approach that takes into account different regulatory perspectives is necessary. This paper identifies competition policy, consumer policy, and data protection policy as the three main regulatory perspectives that must be taken into account in order to adequately address privacy concerns. Each area of the law is reviewed in turn, from an economic perspective, in an attempt to discern how policies might remedy market failures concerning privacy rights and how a more integrated regulatory approach can be developed. The paper is structured as follows: Section II provides a brief overview of the economics of privacy. It begins by noting (in line with the article…

Alessandro Acquisti, Curtis Taylor, and Liad Wagman ‘The Economics of Privacy’ (2016) Journal of Economic Literature 54(2) 442

This article – which can be found here – summarises theoretical and empirical research on the economics of privacy. It focuses on the economic value and consequences of protecting and disclosing personal information, and on consumers’ understanding and decisions regarding the trade-offs associated with the privacy and the sharing of personal data. Their starting point is that the economics of privacy is a branch of information economics. Economists’ interest in privacy has primarily focused on its informational dimension: the trade-offs arising from protecting or sharing of personal data. At its core, the economics of privacy concerns the trade-offs associated with the balancing of public and private spheres between individuals, organizations, and governments. In this regard, the authors identify a number of important characteristics of privacy and personal information as economic goods: First, the value of keeping some personal information protected, and the value of it being known, are almost entirely context-dependent and contingent on essentially uncertain combinations of states of…

Darren S. Tucker ‘The Proper Role of Privacy in Merger Review’ CPI Antitrust Chronicle May 2015 (2)

This is  a (short) paper on the proper role of privacy in merger review, which can be found here. While focusing mainly on the US (where there have “been increasing calls for the Federal Trade Commission (“FTC”) and U.S. Department of Justice (“DOJ”) to consider the potential loss of consumer privacy as a factor in their merger reviews and to challenge mergers of firms with large stores of personal data that otherwise pose no apparent competitive issues”), it could be read more generally. The argument in this paper is quite straightforward: the law is clear that non-competition factors – such as standalone consumer concerns – cannot be considered in antitrust analysis. Further, the law seems to be on sound policy grounds. The paper begins by arguing that there are good reasons why privacy should not be applied as a competitive parameter. First, there are a variety of concepts of privacy, and it is unclear which one should be applied. Secondly,…

Francisco Costa-Cabral, Orla Lynskey, ‘Family ties: The intersection between data protection and competition in EU law’

This article – published in (2017) Common Market Law Review 54 11 – looks at the relationship between privacy and competition law (in the EU). The authors state that, instead of getting into a discussion of whether public policy considerations regarding data privacy should be considered as part of consumer welfare, they are looking instead at the elective affinities between privacy and competition law. Curiously, they seem to reach a conclusion related to competition assessment (i.e. the impact of data protection on consumer welfare): “data protection conditions offered to individuals can reflect the parameters of quality, choice, and innovation” The paper makes two primary arguments:  that data protection law– a framework designed to identify and achieve an optimal level of personal data protection – can provide the normative guidance that competition law lacks in relation to non-price competitive parameters;  it develops a normative benchmark to assess whether certain competition law commitments and remedies should be accepted. The structure of the paper…