Competition Law in The Age of “Big Data”: When Something is Free, you are the Product
Dr. Nora Memeti
Assistant Professor – Kuwait International Law School
Abstract:
This paper explores whether competition authorities should incorporate data violations when they assess concentrations and abusive behavior of technological undertakings.
2017 will be remembered as a year in which the European Commission (COM) imposed fines on technological undertakings, such a social platform, for breaching European Union (EU) Competition Law. Data, seen as the new oil of the digital market, are considered to be the input of these undertakings on which the COM declared non-jurisdiction. It is important to underline that the product market of online platforms is not data. However, since technological undertakings provide users with a certain (free) services in exchange of data, this may give power to competition authorities to claim jurisdiction when they assess concentration or abusive behavior. According to the COM, the objective of Competition Law is the promotion of (current) economic value, and data for the time being is not considered to be one of economic value.
The operation of platforms is not geographically limited to a certain Union or a Country. Whereas at the Union level the EU Competition Authority perception of data under the second pillar is narrowed, a Member State of the same Union such as Germany treats this question broader. On the other hand, a third country (including GCC Countries) may also opt for a similar application based on the existing comparative practice.
The article is structured as follows: Part 1 provides introductory remarks on big data and competition law; Part 2 deals with the impact data have on digital market and EU Competition Law. Part 3 deals with the Commission’s (lack of) powers in the online market with a case illustration in the digital platforms. Part 4 explores the role of the national authorities of the Member States in the online market. Finally, the last part provides conclusion and recommendations.
Key terms:
big data, competition law, dominant position, abuse, mergers.