scholarly journals Data Protection and Competition Law Enforcement in the Digital Economy: Why a Coherent and Consistent Approach is Necessary

2021 ◽  
Author(s):  
Klaus Wiedemann
Keyword(s):  
Data Protection ◽  
Consumer Choice ◽  
Business Models ◽  
Online Advertising ◽  
Personal Data ◽  
Competition Law ◽  
Third Party ◽  
Starting Point ◽  
Recent Developments ◽  
Consumer Autonomy

AbstractThis contribution argues that a coherent and consistent interpretation of data protection and competition law is both possible and adequate. To illustrate this need, the ongoing abuse-of-dominance investigation by the French Autorité de la Concurrence against Apple is analysed. Representatives of the online advertising industry lodged a complaint against the introduction of Apple’s “App Tracking Transparency framework”. The latter includes a de facto obstacle to third-party tracking which shuts down advertisers’ access to those precious personal data that can be used for online advertising. With the Apple case in mind and by way of example, this paper argues that the regulation of consent to the processing of personal data under the GDPR serves as a dogmatic link between data protection and competition law, as this legal basis is at the heart of many digital business models. The GDPR provides a normative framework to determine when consent has been “freely given”. This can be a fruitful starting point for a competitive assessment, too, as both legal regimes pursue the objective of protecting consumer autonomy and consumer choice. The paper finishes by finding that its dogmatic approach corresponds to recent developments within competition law legislation and enforcement.

scholarly journals Questions that Have Arisen since the EU Decision on the Whatsapp Acquisition by Facebook

2019 ◽  
Vol 3 (1) ◽  
pp. 15-51
Author(s):  
Vicente Bagnoli
Keyword(s):  
Market Power ◽  
Data Protection ◽  
Online Advertising ◽  
Personal Data ◽  
Competition Law ◽  
Eu Competition Law ◽  
National Competition ◽  
User Data ◽  
Mobile Development ◽  
The Eu

On October 3rd, 2014, the European Commission (EC) concluded the analysis of the transaction by which Facebook, Inc. (“Facebook”, USA) had acquired WhatsApp Inc. (“WhatsApp”, USA) by way of a purchase of shares for US$ 19 billion, which contributed to Facebook’s strategy of focusing its business on mobile development (Case no. COMP/M.7217). In its decision, the EC stated that the deal would raise no competition concerns and authorised the proposed acquisition of WhatsApp by Facebook concluding that Facebook Messenger and WhatsApp are not close competitors and that consumers would continue to have a wide choice of alternatives for consumer communication apps after the acquisition. The EC analysed potential data concentration issues only within the scope that the acquisition could weigh down competition in the online advertising market. Privacy-related concerns from the increased concentration of data within the control of Facebook because of the deal with WhatsApp are not an EU Competition Law matter. Notwithstanding, just some months after the decision two national competition authorities (Germany and Italy) opened procedures against Facebook. In Germany, the Bundeskartellamt initiated in March 2016 a proceeding against Facebook – Facebook Inc., USA, the Irish subsidiary of the company, and Facebook Germany GmbH, Hamburg – on suspicion that  Facebook had abused its market power by infringing data protection rules with its specific terms of service on the use of user data. In Italy, in May 2017, the Autorità Garante della Concorrenza e del Mercato (AGCM) fined WhatsApp EUR 3 million for having forced its users to share their personal data with Facebook as a conclusion of two investigations opened in October 2016 concerning infringements of the Consumer Code. The present article proposes to answer three main questions concerning the EC decision on the WhatsApp acquisition by Facebook: (i) Did the EC apply the best tools to analyse the case?; (ii) Could the EC have addressed a decision that would somehow interfere in the privacy field?; and (iii) Could the procedures in Germany and Italy have been avoided?

scholarly journals Digital Economy, Big Data and Competition Law

2019 ◽  
Vol 3 (1) ◽  
pp. 53-89
Author(s):  
Roberto Augusto Castellanos Pfeiffer
Keyword(s):  
Big Data ◽  
Data Protection ◽  
Personal Data ◽  
Competition Law ◽  
Digital Economy ◽  
Data Driven ◽  
Dominant Position ◽  
Privacy Concerns ◽  
Sense Data ◽  
Abuse Of Dominant Position

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.

scholarly journals Explaining the Technology Use Behavior of Privacy-Enhancing Technologies: The Case of Tor and JonDonym

2020 ◽  
Vol 2020 (2) ◽  
pp. 111-128 ◽  
Author(s):  
David Harborth ◽  
Sebastian Pape ◽  
Kai Rannenberg
Keyword(s):  
Technology Acceptance ◽  
Technology Use ◽  
Online Survey ◽  
Business Models ◽  
Personal Data ◽  
Path Model ◽  
Future Research ◽  
Starting Point ◽  
Privacy Enhancing Technologies ◽  
Use Behavior

AbstractToday’s environment of data-driven business models relies heavily on collecting as much personal data as possible. Besides being protected by governmental regulation, internet users can also try to protect their privacy on an individual basis. One of the most famous ways to accomplish this, is to use privacy-enhancing technologies (PETs). However, the number of users is particularly important for the anonymity set of the service. The more users use the service, the more difficult it will be to trace an individual user. There is a lot of research determining the technical properties of PETs like Tor or JonDonym, but the use behavior of the users is rarely considered, although it is a decisive factor for the acceptance of a PET. Therefore, it is an important driver for increasing the user base.We undertake a first step towards understanding the use behavior of PETs employing a mixed-method approach. We conducted an online survey with 265 users of the anonymity services Tor and JonDonym (124 users of Tor and 141 users of JonDonym). We use the technology acceptance model as a theoretical starting point and extend it with the constructs perceived anonymity and trust in the service in order to take account for the specific nature of PETs. Our model explains almost half of the variance of the behavioral intention to use the two PETs. The results indicate that both newly added variables are highly relevant factors in the path model. We augment these insights with a qualitative analysis of answers to open questions about the users’ concerns, the circumstances under which they would pay money and choose a paid premium tariff (only for JonDonym), features they would like to have and why they would or would not recommend Tor/JonDonym. Thereby, we provide additional insights about the users’ attitudes and perceptions of the services and propose new use factors not covered by our model for future research.

scholarly journals Addressing Anticompetitive Data Aggregation: a Comment to Bundeskartellamt Decision B6-22/16

2019 ◽  
Vol 12 (19) ◽  
pp. 139-171
Author(s):  
Laura Skopowska
Keyword(s):  
Data Protection ◽  
Mobile Applications ◽  
Data Aggregation ◽  
Personal Data ◽  
Third Party ◽  
Competition Authority ◽  
German Market ◽  
Dominant Position ◽  
Combining Data ◽  
Barrier To Entry

Data aggregation, understood as the process of gathering and combining data in order to prepare datasets that might be useful for specific business or other purposes, is not per se forbidden. However, some forms of it can be considered anticompetitive. In the Decision B6-22/16 of the German Federal Cartel Office (Bundeskartellamt) data aggregation, which included the collection of data from sources outside of Facebook’s social network (from Facebook-owned services such as WhatsApp and Instagram and from third party websites or mobile applications) and their combination with the information connected with a particular Facebook user account without that user’s consent, constituted an abuse of Facebook’s dominant position on the German market for social networks. The Bundeskartellamt found that the processing of user’s personal data by Facebook has, to some extent, been carried out in a way which infringed GDPR provisions. In the same decision, the Bundeskartellamt also identified the exclusionary nature of Facebook’s anticompetitive behaviour. According to the Bundeskartellamt, the illegal data aggregation formed a barrier to entry for Facebook’s competitors which, through compliance with data protection standards, found themselves in a worst position. Facebook, through its inappropriate data aggregation gained a competitive advantage. The Bundeskartellamt’s decision is, therefore, reflecting the anticompetitive dangers that data aggregation might pose. Nevertheless, it is debated whether the Bundeskartellamt, as a competition authority, is competent to determine the compliance or lack of compliance of business terms with the provisions of the GDPR. This paper analyzes the Bundeskartellamt’s decision as to where an anticompetitive nature of data processing has been identified, and tries to answer the question why it is problematic that it was the Bundeskartellamt and not a data protection supervisory authority that has issued such a decision.

5. The data protection principles

2017 ◽  
Author(s):  
Ian J. Lloyd
Keyword(s):  
Data Protection ◽  
Data Use ◽  
Personal Data ◽  
Third Party ◽  
Security Measures ◽  
Data Controller

This chapter focuses on the data protection principles under the Data Protection Act 1998. It considers to what extent and under what conditions a data controller may lawfully process personal data. Use may take a variety of forms and will include disclosure of data to a third party. It also looks at the operation of the principle requiring users to adopt appropriate security measures.

Personal Data and Contract Law: Challenges and Concerns about the Economic Exploitation of the Right to Data Protection

2018 ◽  
Vol 14 (4) ◽  
pp. 374-392
Author(s):  
Giuseppe Versaci
Keyword(s):  
Data Protection ◽  
Business Models ◽  
Policy Issue ◽  
Personal Data ◽  
Contract Law ◽  
Related Case ◽  
Economic Exploitation ◽  
Digital Business Models ◽  
The Right ◽  
The Eu

Abstract The so-called ‘free’ digital business models – users are not requested to pay a price, but to disclose personal data – are a very common reality. To tackle this phenomenon, the European Commission’s proposal of Directive on contracts for the supply of digital content used the concept of personal data as counter-performance. This stance proved to be quite problematic. It has been opposed by the European Data Protection Supervisor (EDPS) arguing that it should not be possible to subject the fundamental right to data protection to a commercial transaction. This article dwells upon the economic exploitability of the right to data protection, showing that Article 8 of the EU Charter of fundamental rights and the related case law of the CJEU do not justify the concerns raised by the EDPS. This seems to be confirmed by the fact that the legal traditions of the EU Member States recognize that personality rights can be the object of a contract, although they limit to a certain extent the private autonomy of the parties. Thus, the commodification of personal data – like the commodification of other incorporeal attributes of personality – is not banned. Rather, there is now a policy issue about how to handle the risk of personalized discrimination and the problem of inequality of bargaining power in digital business models based on personal data. In this respect, political decisions should not be too affected by conceptual barriers between data protection law and contract law. In line with this position, the author argues that the economic exploitation of the right to data protection should not be considered a waiver of the same right.

Direct Consumer Influence—The Missing Strategy to Integrate Data Privacy Preferences into the Market

2020 ◽  
Author(s):  
Adrian Kuenzler
Keyword(s):  
Data Privacy ◽  
Business Models ◽  
Data Gathering ◽  
Personal Data ◽  
Competition Law ◽  
Consumer Sovereignty ◽  
Digital Platforms ◽  
Privacy Preferences ◽  
Novel Approach ◽  
Quality Dimensions

Abstract In view of a growing number of competition law investigations into the gathering and use of personal data by digital platforms, this article discusses the extent to which consumer sovereignty can be given greater weight in concentrated marketplaces where firms employ multi-sided business models and compete along quality dimensions such as privacy rather than price. The article explores the concept of direct consumer influence as a novel approach vis-à-vis switching or choosing differently in the public enforcement of competition law. Direct consumer influence constitutes a distinct avenue for embedding consumers’ choices into the market when consumers have few possibilities to act and holds the potential to shape digital markets in unanticipated ways. Using the example of the German Federal Cartel Office’s investigation into Facebook’s data-gathering practices, the article illustrates how direct consumer influence may clarify the relationship between data protection, consumer rights, and competition law.

Exploitative abuses in digital markets: between competition law and data protection law

2020 ◽  
Author(s):  
Miriam Caroline Buiten
Keyword(s):  
Market Power ◽  
Data Protection ◽  
Data Privacy ◽  
Personal Data ◽  
Competition Law ◽  
Privacy Concerns ◽  
Online Platforms ◽  
Data Protection Law ◽  
Collection Practices ◽  
Abuse Of Dominance

Abstract Online platforms increasingly offer consumers services ‘for free’, in exchange for collecting consumers’ personal data. This business model is highly successful, leading some online platforms to gain substantial market power. This market power can cause consumer harm—not through higher prices, but in the form of privacy harm. This article considers what role competition law and data protection law can play in mitigating this harm to privacy. The article considers how we can conceptualize exploitative abuse of dominance cases in zero-price markets. The article calls into question if data protection laws should play a role in antitrust abuse assessments, against the background of the Bundeskartellamt antitrust investigation into Facebook’s data collection practices. The article argues that, even in digital markets that unequivocally link market power with data privacy concerns, competition law and data protection law have complementary but distinct roles to play.

scholarly journals THE EFFECTIVENESS OF THE MINISTER OF COMMUNICATION AND INFORMATICS REGULATION NUMBER 20 OF 2016 ON THE PROTECTION OF PERSONAL DATA IN ELECTRONIC SYSTEMS

2019 ◽  
Vol 8 (1) ◽  
pp. 119
Author(s):  
Fadhilah Pijar Ash Shiddiq ◽  
Sinta Dewi Rosadi ◽  
Rika Ratna Permata
Keyword(s):  
International Law ◽  
Data Protection ◽  
Personal Data ◽  
Information Privacy ◽  
Third Party ◽  
Electronic Systems ◽  
Personal Data Protection ◽  
Positive Law ◽  
Sim Card ◽  
The Right

<p>Privacy, as a part of Human Rights, is the right of freedom of private matters. The basic concept of privacy is “the right to be let alone” which state that every individual have the right to have his own solitude without intervention. One of the most important information which also can be associated with Information Privacy is Personal Data that shall be protected as a form of protection to the privacy itself. Some of the personal data has been used as the requirements of the SIM Card Registration, thus making new problems regarding its personal data protection since the comprehensive regulation still covered only by the Ministral Regulation. Research method used in this paper is Descriptive Analytic in which the writer analyze the research object by explaining the situation and the condition of the personal data protection obtained from literatures on the facts that can be associated with the implementation of SIM Card Registration Policy according to Indonesia’s Positive Law and International Law. According to the result of the study, the Ministral Regulation already covered most of the basic data protection needed in the SIM card registration policy, however the protection provided by the Ministral Regulation still has not covered the third party involved. The Involvement of this third party is inevitable and should be protected immediatelyin order to prevent any abuse of personal data.</p>

PERSONAL DATA PROTECTION IN THE EMPLOYMENT CONTRACT

2021 ◽  
Vol specjalny II (XXI) ◽  
pp. 331-340
Author(s):  
Tomasz Świętnicki ◽  
Mateusz Jakubik
Keyword(s):  
Data Protection ◽  
Labor Law ◽  
Personal Data ◽  
Employment Relationship ◽  
Ethical Values ◽  
Employment Contract ◽  
Employment Relationships ◽  
Personal Data Protection ◽  
Starting Point

This text is devoted to the protection of personal data in the employment relationship. The starting point for this analysis were the provisions resulting from the Polish Constitution, namely Art. 30. We discussed the conditions of personal data protection in labor law, focusing in particular on Art. 221 of the Labor Code and all related regulations. We have tried to explain what the processing of personal data is, and what are the correlations in employment relationships. In our opinion, the protection of personal data itself is not only the necessity of cooperation between the employee and the employer to the extent specified by law, but also based on ethical values. Hence the employer’s obligation to avoid actions that directly interfere with the employee’s protected personal belongings

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