Antitrust authorities have started to scrutinize and investigate the relationship between Big Data and the competition laws.
On May, 10th the German Antitrust Authority (Bundeskartellamt) and the French Antitrust Authority (Autorité de la concurrence) published a joint paper about Big Data and its implication for competition law (available here).
The paper is intended to evaluate the state-of-play of the debate and identify the relevant factors that should be taken into consideration in the analysis of the interplay between the collection of massive sets of (often personal) data for commercial purposes and the antitrust environment.
Big Data can drive efficiencies and innovation in the digital economy but they can also pose at risk the competition game.
On one hand, Big Data can become an instrument of market power. And market power could result in exclusionary conducts against rivals or exploitative behavior against consumers.
According to the paper two are the most relevant aspect that should be looked at as regard the assessment of data as a factor of establishing market power:
- whether the data collection and use can be easily replicated by rivals;
- whether the scale and the scope of data matter as a key factor of competition.
On the other hand, the greater information resulting from massive data collection may increase transparency of the market and facilitate collusion between competitors.
The joint paper follows actions already undertaken in this field by the Bundeskartellamt and the Autorité de la concurrence.
Indeed, at the beginning of March the German Antitrust Authority launched an investigation into Facebook’s terms of service on the use of users’ data in order to ascertain whether they constitute an abuse of dominant position. The Bundeskartellamt objects that the conditions of use set by Facebook violate privacy laws and are unfairly imposed by the social network giant as a result of its market power. One of the focus of the probe of the German Antitrust Authority will be the analysis of the possible connection between the use of clauses disrespectful of privacy provisions and the dominant position allegedly held by Facebook. The European Commissioner Vestager has declared that the abovementioned investigation is “well-suited” and will be “important to everyone” because it will be based in part on European competition law.
The French Antitrust Authority will do its part as well, by launching soon – as announced – a “full-bown sector inquiry into data-related markets and strategies”.
In UK Big Data is already under scrutiny in the insurance sector. In November 2015 the Financial Conduct Authority launched a public consultation on the use of Big Data by insurance companies asking the following questions: a) does Big Data affect consumer outcomes? b) does Big Data foster or constrain competition? c) Does the regulatory framework affect developments in Big Data in retail general insurance? The results of this initiative and the next moves are expected in mid-2016.
It is easy to predict that all this is just a start. Antitrust authorities have entered the scene and now they want to play a role.