Abstract
The relationship between competition law and data protection law has been a highly controversial issue following the German Competition Authority’s (Bundeskartellamt, hereinafter ‘Competition Authority’) decision with regard to Facebook’s data processing policy. The Competition Authority’s theory of harm was centered around an exploitative abuse of market power through the imposition of a data processing policy which is in conflict with the data protection rules. In the interim court proceedings, the OLG Düsseldorf criticized the Competition Authority’s decision. The German Federal Supreme Court (Bundesgerichtshof, hereinafter ‘Federal Supreme Court’) upheld the Competition Authority’s decision. However, the Federal Supreme Court did not derive the exploitative abuse primarily from a mere violation of data protection law. Instead, the Court referred to the users’ lack of freedom of choice. The Court developed a modified theory of harm by identifying elements of an exploitative abuse but also of an exclusionary abuse. The Court’s line of argument is more competition-oriented and accounts for the particular economic features of multi-sided markets. In this line of reasoning, an actual violation of the data protection rules is not a necessary prerequisite for finding a violation of competition law.
Recent trends in the development of legal regulation in the sphere of ensuring information security of the judicial system in the Russian Federation
