Big Data and Antitrust Law

Producción CientíficaThe technological revolution we have witnessed in recent years had led to the appearance of a new term within the framework of the digital economy: Big Data. The rise and consolidation of enterprises with major volumes of production based on business models that involve the gathering and processing of personal data has caused misgivings amongst the competition authorities, and has led to a conflict between defenders of the pro-competitive nature of Big Data and those who take a more sceptical view, who have warned of the possibility that these data policies may be used by companies as a tool for creating, consolidating, and extending their positions of power in the market.Este artículo ha sido realizado en el marco del “Proyecto de Investigación: “Distribución y Competencia: retos y problemas en el marco de una economía global y digitalizada” (VA015G18), de la Consejería de Educación de Castilla y León

Digital Economy, Big Data and Competition Law

Big data has a very important role in the digital economy, because firms have accurate tools to collect, store, analyse, treat, monetise and disseminate voluminous amounts of data. Companies have been improving their revenues with information about the behaviour, preferences, needs, expectations, desires and evaluations of their consumers. In this sense, data could be considered as a productive input. The article focuses on the current discussion regarding the possible use of competition law and policy to address privacy concerns related to big data companies. The most traditional and powerful tool to deal with privacy concerns is personal data protection law. Notwithstanding, the article examines whether competition law should play an important role in data-driven markets where privacy is a key factor. The article suggests a new approach to the following antitrust concepts in cases related to big data platforms: assessment of market power, merger notification thresholds, measurement of merger effects on consumer privacy, and investigation of abuse of dominant position. In this context, the article analyses decisions of competition agencies which reviewed mergers in big data-driven markets, such as Google/DoubleClick, Facebook/ WhatsApp and Microsoft/LinkedIn. It also reviews investigations of alleged abuse of dominant position associated with big data, in particular the proceeding opened by the Bundeskartellamt against Facebook, in which the German antitrust authority prohibited the data processing policy imposed by Facebook on its users. The article concludes that it is important to harmonise the enforcement of competition, consumer and data protection polices in order to choose the proper way to protect the users of dominant platforms, maximising the benefits of the data-driven economy

Why More Antitrust Immunity for the Media Is a Bad Idea

The U.S. newspaper industry specifically and traditional media industries generally are in transition. In response to declining audiences and advertising revenue, many traditional media firms have laid off journalists and cut back on news. With their financial difficulties, some traditional media firms have called for greater leniency under the federal antitrust laws. Newspaper owners and journalists have called for greater antitrust immunity for joint advertising, joint fees for readership and accessing content online, and joint reporting. Others have called on the Federal Communications Commission (“FCC”) to loosen further its Cross-Ownership Rules. Some politicians have suggested that the federal antitrust agencies give these traditional media firms “more leeway to merge or consolidate.” The Federal Trade Commission (FTC) in recent hearings inquired as to whether antitrust immunity is necessary for newspapers’ collaboration and under what circumstances, if any, antitrust immunity for certain joint conduct could be justified

The implications of big data and privacy on competition analysis in merger control and the controversial competition-data protection interface

The article examines the implications of big data for competition law, with a focus on personal data and the privacy concerns that such data may give rise to, especially in the area of merger control. Today, one of the biggest challenges for competition authorities in data-driven markets is how to deal with issues related to personal data and the protection of privacy in their analysis. A key question is the role of competition law in protecting consumers from potential data privacy risks arising in the context of mergers in digital markets. The article also engages with one of the currently most debated topics in the competition community, namely the competition-privacy interface, and considers how personal data in the digital economy is considered a currency in exchange for online offerings, and how a loss of privacy can be factored into quality competition. The article addresses some of the challenges with incorporating privacy as a non-price parameter into competition analysis and offers food for thought by discussing relevant methodologies to assign monetary values to personal data. © 2019 Kluwer Law International BV, The Netherlands.Peer reviewe

Antitrust Review of the AT&T/TMobile Transaction

In August 2011, the United States brought a landmark antitrust lawsuit to prevent the merger of two of the nation\u27s four largest mobile wireless telecommunications services providers, AT&T Inc. and T-Mobile USA, Inc. But why are so many elected officials asking the Obama administration to intercede in the Department of Justice\u27s lawsuit to force a settlement? Why are they approving a merger that would likely lead to higher prices, fewer jobs, less innovation, and higher taxes for their constituents? Does it have anything to do with the money they are receiving from AT&T and T-Mobile? This Article examines the recent lobbying efforts in the AT&T/T-Mobile merger. AT&T spent $11.69 million on political lobbying in the first six months of 2011. In addition to hefty campaign contributions, it lobbied lawmakers with$52 steaks and $15 gin-and-cucumber puree cocktails. But lobbyists, as this Article outlines, are not the problem. The problem is the combination of lax campaign finance rules and antitrust law\u27s prevailing legal standard, a flexible fact specific rule of reason