The economic value and utility of customer data has led to many technology companies devising successful business models on the basis of providing free access to their online platforms and services in return for access to their users’ personal data. Data has therefore become an important input for online services and thus a parameter for market competition in the digital economy.
The ‘Big Tech’ companies have been able to harness the network effects of their platforms to obtain an ever-increasing trove of user data (for example, data generated by a social network). Central to the success of these technology companies has been their ability to commercialize their access to customer data through advertising, generating significant revenue, while allowing them to devise a wide array of more personalized services (in turn further enhancing the network effects of the platform). This arguably provided benefits for both sides: customers benefit from services empirically proven to satisfy their demand, while sellers and advertisers are able to analyze more granular information on customers. However, the platform providers’ business model also raised the concern that both the sheer volume and substance of the data generated by their customers utilizing their broad platforms may be difficult for competitors to replicate, thereby potentially creating significant competitive advantages and barriers to entry.
At the start of its investigation against Facebook, the President of the German competition authority, the Bundeskartellamt (BKartA), proclaimed that its investigation signified the start of antitrust authorities scrutinizing more closely the “machine room of data-driven platforms.”1 This investigation culminated in a decision in February 2019 that found that Facebook’s collection of its users’ data from both within and outside of Facebook’s platform without “voluntary” user consent infringed German competition law. The BKartA’s decision is not yet final2 — Facebook has appealed against the decision to the Düsseldorf Higher Regional Court.
Amazon’s dual role as platform provider and seller on its Marketplace platform has also come under scrutiny. The European Commission (EC) is investigating Amazon’s use of customer data whilst the BKartA,4 the Austrian competition authority (the Bundeswettbewerbsbehörde (BwB))5 and Italian competition authority (the Autorità Garante della Concorrenza e del Mercato (AGCM))6 are all looking at Amazon’s allegedly unfair terms and conditions imposed on third-party retailers on its Marketplace.
DATA AND PLATFORM TERMS & CONDITIONS AS AN ABUSE OF DOMINANCE
The BKartA’s decision in February 2019 concluded that Facebook had infringed German competition law by forcing German customers’ access to its social network to be conditional on its processing of user data from services within the Facebook platform (e.g., WhatsApp and Instagram) as well as in respect of third-party apps or websites without the effective consent of its users. Although Facebook’s user terms and conditions allow it to collect data in this manner, according to the BKartA, the lack of alternatives to Facebook in the German social network market makes it difficult to prove that users have given their free consent to it amassing “such a treasure trove” of their data when users click to accept Facebook’s terms and conditions as part of signing up to the social network.
Continuing the examination of platforms’ exploitation of user data and terms and conditions in the national enforcement sphere; in November 2018, the BKartA initiated proceedings against Amazon for abusing its dominance in the German online retail market by imposing unfair terms and conditions on third-party sellers on its Marketplace.7 These thirdparty sellers include “tens of thousands” of small and medium-sized enterprises that Amazon directly competes with when it sells its own-brand products.8 The terms and conditions, which the thirdparty sellers must accept in order to be able to sell on the Marketplace, govern the rules in which they can advertise and sell on the Marketplace and they may disadvantage the sellers’ ability to compete with Amazon.
The BKartA’s investigations appear to have had a domino effect. In 2019, the BwB in Austria, the AGCM in Italy and the Conseil de la Concurrence (CC) in Luxembourg all launched probes into whether Amazon’s Marketplace platform has abused its market dominance by discriminating against third-party sellers and favoring its own products.9 Whilst the AGCM’s investigation focuses on whether Amazon’s terms and conditions provide an unfair advantage to third-party sellers who use Amazon’s own logistics services, the CC follows the EC’s lead in also covering Amazon’s collection of data in order to (allegedly) gain a competitive advantage. These investigations are still at preliminary stages and are yet to reach any conclusions as to whether Amazon infringed any domestic competition laws.
THE EC INVESTIGATES AMAZON MARKETPLACE’S USE OF DATA
In September 2018, the EC commenced preliminary investigations (by, for example, sending questionnaires to third-party sellers) into Amazon’s dual role on its Marketplace platform and
how Amazon uses data generated from transactions on its platform.10 Unusually, the EC’s investigation was not prompted by a complaint from a competitor but from the EC’s own market observations and its 2017 e-commerce sector inquiry More specifically, the EC is examining whether such data collection practices may provide Amazon with a unique competitive advantage by offering insights into how it can successfully develop and market its own products to customers. The EC may also be investigating a novel form of databased leveraging in that, by collecting such data, Amazon is capitalizing on its pre-eminent market position in the online intermediary retail market in order to bolster its market position on the upstream retail market by developing consumer products itself.
Another theory of harm that the EC may be formulating is whether sellers are afforded equal access to potentially competitively sensitive information regarding rival Marketplace sellers such as prices, sales numbers and customer search information. Even if third-party sellers are allowed equal access, this may lead to other competition law issues such as the risk of sellers using Amazon’s Marketplace as a hub-andspoke platform for price-fixing among themselves.11 Amazon could, in principle, still be liable for any such infringement of competition law if it was shown to have facilitated and to have been reasonably aware of the collusion.
Amazon finds itself in an unusual situation of being simultaneously investigated by both a number of national authorities in Europe and the EC for its alleged conduct on its Marketplace, particularly as the national authorities formally announced their investigations after the EC had already commenced its own inquiries. While the BKartA’s theory of harm incorporates the use of the Marketplace’s allegedly unfair terms and conditions, the EC’s investigation is significant as it exclusively focuses on Amazon’s unique access to data as platform provider in order to gain an unfair competitive advantage.
Commissioner Vestager has admitted that there may be “completely legitimate” reasons for Amazon collecting the data in order to improve the service of its Marketplace for both sellers and buyers.12 It remains to be seen whether the EC’s ongoing investigation will lead to it commencing formal proceedings against Amazon.
REGULATING ‘DOMINANT’ ONLINE PLATFORMS USE OF DATA
There is a material risk that technology companies’ platforms are deemed to be dominant by a competition authority. In its decision, the BKartA judged Facebook to possess a dominant position in the German social network market, whilst its preliminary investigation against Amazon has found “indications” that Amazon may be dominant in online marketplace services market.13
A dominant online platform may become subject to additional obligations with regard to the way it uses user/competitor data if such data is deemed to be vital to be able to compete effectively on the platform. Platforms may be required to provide access to such data to its competitors on non-discriminatory terms or they may find that a refusal to provide access to such data may infringe competition law. An example of potentially problematic behavior could be the allegations made by a U.K. Parliamentary Committee that Facebook had threatened to cut off user data to potential rivals, while giving preferential access to app developers that had paid for advertising.14 Regulators could potentially use such obligations on the use of data as a means of encouraging the sharing of data between market participants in order to stimulate effective competition in the digital economy. However, any such intervention raises delicate questions as to whether data can be seen as truly essential justifying the imposition of a far-reaching access obligation.
The various regulatory interventions also indicate that popular technology companies should be careful of the substance as well as the manner in which they impose terms and conditions both on data-rich customers as well as on potential competitors utilizing their platform. The BKartA found that, given Facebook’s dominant market position, a mere “obligatory tick on the box to agree to the company’s terms’ of use” was not sufficient and that Facebook must do more in order obtain effective consent from its joining users.15 If Facebook fails to do this, it must substantially restrict or cease its data collection in particular from sources outside of the Facebook platform in order to comply with the BKartA’s decision.16
Tighter restrictions on the freedom of technology companies to use data may hamper their ability to generate revenues from advertising and other data-related services, or they may revert to asking consumers for remuneration rather than their data.
THE RELATIONSHIP BETWEEN ANTITRUST AND DATA PROTECTION ENFORCEMENT
The implications of the BKartA’s Facebook decision to the continuing debate surrounding the interface between data protection and antitrust enforcement may be limited to German enforcement. The BKartA relied on German case law in order to use Facebook’s alleged breach of the EU General Data Protection Regulation (GDPR)17 to prove that Facebook’s data processing practices constituted an abuse under German competition law (i.e., “exploitative business terms”).18 The GDPR breach, according to the BKartA, was that Facebook had no effective justification in order to collect its users’ data from other apps and services without their effective consent.19
It could be questioned, however, whether the BKartA was the best authority to assess the underlying breach of the GDPR and to pursue such data protection concerns, or whether the German data protection authority would have been better placed to deal with them. Whilst the BKartA “closely cooperated with data protection authorities” in its investigation,20 there is currently no clear framework in Germany or across Europe for consistency of enforcement if both data protection and competition authorities are able to sanction the same conduct.
Given the importance of data in the digital economy and the increased spotlight on the data protection practices both from an antitrust perspective as well as more generally with the enforcement of the GDPR from May 2018,21 it is likely that data issues will be influential in future antitrust cases. The EC hosted a conference in January 2019 on the competition issues of data access, sharing and pooling “in a world of ubiquitous data” as well as the market power of digital platforms.22
In light of the EC and national competition authority investigations and of the BKartA’s Facebook decision, it is evident that antitrust authorities are increasingly scrutinizing the role of data in competition and, particularly, in competition on online two-sided platforms. Given the combination of concerns regarding the alleged market power of the big technology companies and the role of data as a parameter to competition and as an important input for digital services, increased enforcement in this area can be expected.
It is clear that antitrust authorities will consider data issues when they are seeking to establish anti-competitive behavior. In addition to fines imposed (which can be up to 10% of the infringer’s global turnover for EC fines), any behavioral or structural remedies imposed as a result of such cases may well have a significant impact on the business model of technology companies that have, until now, been very successful at utilizing customer data in order to develop a profitable ecosystem of diverse products and services.