Overview of privacy in cases relevant to competition law

KEYWORDS

Privacy in competition cases is becoming common due to the importance of data. The literature thus focuses on the role of data and privacy in antitrust and merger control laws. Yet, the literature does not offer an empirical overview of the cases to understand how countries investigate the issue. This paper fills the gap. From publicly available cases from 2007 for the first until September 2022 and online surveys sent to 91 competition authorities in January 2022 in the context of a database of antitrust cases related to privacy for the law journal Concurrences, it offers for the first time an/ overview of the topic. The data collection focuses on competition cases and contains consumer protection and data protection cases relevant to competition. The paper found that several countries are investigating, or have investigated, privacy issues under the three legal regimes, mostly under antitrust laws in the digital sector. Several ongoing cases still pose unresolved questions, especially when competition and privacy conflict. This requires a cooperation mechanism between competition and non-competition authorities to deal with cross-regulatory issues, in which authorities should deepen their knowledge of other legal regimes, and adapt and use the instruments of international cooperation between competition authorities.

I. Introduction 1. Privacy in competition cases is becoming more common due to the importance of data in the economy. In the last few years, the law and economics literature has focused on the role of data and privacy in pro- or anticompetitive practices. [1] The authors showed that privacy is relevant to competition as it is a factor in a commercial practice to gain a data advantage, in which data is a source of market power. [2] Indeed, firms might have the incentive and ability to use privacy to collect more personal data from end users, combine data with other services, or prevent rivals from accessing data. [3] The implementation of the commercial practice depends on existing regulations, including competition, consumer protection, and data protection laws, that form a family tie.

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