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Gintarė Surblytė-Namavičienė, researcher at the Innovation and Competition Department of the Max Planck Institute, presents in this book the main regulatory issues raised by the development of the digital economy. The author attempts to answer the question of whether this economy based on data processing marks a break with the traditional economy that would justify a thorough rethinking of current regulation. While this question has already been the subject of much discussion, this book has the advantage of offering in a clear, precise and synthetic form the essential elements of the reflection.
Following a presentation of the issues in an introductory chapter, the question of the changes implied by the development of artificial intelligence (AI) is introduced in Chapter 2. The notion of AI is discussed in terms of two criteria: autonomy and consciousness. The legal consequences attached to the presence or absence of these criteria are discussed, in particular those relating to liability. The author also reviews Adam Smith’s economic theories and demonstrates how the classical concepts allow us to apprehend these major innovations. Finally, she concludes that no drastic change has been introduced by the development of AI, while insisting on the major issue of access to data and the predominant place occupied by personal data in the digital economy.
Chapter 3 is devoted to the question of the protection by business confidentiality of data - personal or non-personal - and, where appropriate, the relationship between such protection and the rules on the protection of personal data. In addition, the author discusses the nature of the ownership granted to the holder of the business secret and the possibilities of access by a third party to the protected information.
Chapter 4 looks at the regulation of the digital economy through competition law and the fashionable issue of revising the current rules. The author recalls that many competition concerns can be addressed by competition law rules (e.g. algorithmic collusion under Article 101 TFEU; denial of access to data under Article 102 TFEU). The Commission seems to believe that a bold application of the existing rules is sufficient to address the new challenges. Moreover, the question of sanctioning dominant positions as such, following the example of American antitrust law, and that of ex ante regulation via, in particular, dismantling, are raised.
Finally, Chapter 5 offers a broader vision of the tools for regulating the digital economy. The issue of regulating the general conditions of use of digital services, through consumer, competition or personal data protection law, is developed. A discussion is also devoted to the place of co- and self-regulation, their respective advantages and disadvantages, particularly with regard to access to data and data protection.
Thus, the economic and technological innovations brought about by the development of the digital economy do not seem to raise any new legal issues that would require a profound change in regulation, according to the author. Nevertheless, certain adjustments to the economic analysis would be appropriate to take into account the specific nature of these markets. Emphasis is placed on the need for agile and flexible regulation in the face of rapid changes in technological innovations.
