Abstract
The intersection of competition law and data privacy presents a significant challenge in the current legal framework. The connection between data privacy law and competition law lacks clarity and definition, requiring further exploration. The immense scale of data collection poses challenges and gives companies a market advantage, sometimes at the expense of individuals' control over their personal data. The shift from price-focused to data-focused markets complicates the integration of privacy concerns within competition law. This chapter aims to enrich discussions on the intersection of competition law and data protection, highlighting the potential for a mutually beneficial connection between these frameworks. It examines the relationship between competition law and sustainable development goals, with a focus on digital and green market development. This chapter contributes to the understanding of consumer protection in the digital age and the need for a comprehensive approach to address the challenges posed by the data-driven economy.
Top1. Introduction
The discussion surrounding how competition law and privacy intersect presents a significant hurdle for the current competition law structure (Douglas, 2021), as immense data collection introduced incentives for large digital undertakings to abuse their market power. In turn, this potential ripple effect could ultimately result in novel theories of harm having a negative and cascading impact on the overall competitive process, hampering economic growth and consumer welfare.
Numerous digital services, such as online advertising, search engines, social media platforms, and location-based services, heavily rely on the utilisation of personal data (BKA, Facebook case 2019). The immense scale of data collection poses challenges for society and laws, giving companies an advantage in the market (Kira, 2021). In some cases, competition drives businesses to gather user information, reducing individuals' control over their personal data. This occurs when companies introduce innovative features to attract new users and extract more data (Saura, 2021). Ultimately, the increasing collection and analysis of personal data provide valuable insights for digital companies (Schäfer, 2023). Processing personal data allows digital platforms to predict personality traits and develop advanced sociometrics by transforming raw data into meaningful information and knowledge. Relying on this knowledge can enhance product quality, services, innovation, and predictions. The dynamic nature of the data market chain, along with its reciprocal dimension, creates feedback loops (Douglas 2021). As a result, the acquisition, collection, and analysis of personal data can reduce costs and improve services in the digital market.
Competition in the online market has created a conflict between consumers' privacy and the motivations of businesses (Kira, 2021). The discussion about the intersection of competition law and data privacy primarily revolves around the practices of dominant players like Google, Apple, Facebook, Amazon, and Microsoft (GAFAM) who act as gatekeepers in the digital economy (DMA, 2022). The shift from price-focused to data-focused markets has presented significant challenges in addressing privacy concerns within the framework of competition law. The central issue at hand is whether the existing tools for enforcing competition law are appropriate and how competition law should interact with privacy concerns.
This chapter focuses on consumer protection in the age of digital revolution, with a focus on uncovering opportunities for a harmonious and mutually beneficial integration of these legal frameworks. The focus especially on EU competition law and privacy-related harms. Additionally, it highlights the critical importance of safeguarding consumers' rights and interests within the ever-evolving and data-centric digital environment, where competition is fierce. Consumer rights are of paramount importance in addressing potential privacy infringements. In an era where personal data is increasingly collected and utilised, safeguarding these rights ensures that individuals have control over their information, protection from abuse, and the ability to make informed choices. Upholding consumer rights not only preserves privacy but also fosters trust in digital services and promotes fair competition, ultimately benefiting both individuals and society as a whole. Competition law and consumer protection are instrumental in promoting economic growth, reducing inequality, and ensuring access to essential goods and services—all of which contribute to the achievement of the Sustainable Development Goals (SDGs).
The crux of this research is to analyse the relationship between competition law and privacy-related harms and its possible impact on consumer protection and SDGs. The chapter begins with the theoretical background between competition law and data privacy, highlighting the EU competition law approach to privacy-related harms. The discussion considers the legal background and an attempt to define privacy through the lens of competition law. Then, the chapter moves to discuss the relationship between EU competition law and SDG. In particular, the consideration will be placed on the digital economy and its impact on consumer protection. The concluding section of this article examines whether the competition law framework can effectively recognise and address privacy-related harms, in addition to safeguarding consumer protection.
Key Terms in this Chapter
European Green Deal: A comprehensive strategy and policy initiative introduced by the European Commission to transform Europe into a climate-neutral continent by 2050. It sets out ambitious goals and measures to combat climate change, promote sustainable economic growth, enhance energy efficiency, increase the use of renewable energy sources, protect biodiversity, and transition to a circular economy. The European Green Deal aims to address environmental challenges while fostering sustainable development and creating new opportunities for businesses and citizens across Europe.
Digital Economy: The digital economy refers to the economic activities that are driven by digital technologies, the internet, and the use of data. It encompasses a wide range of sectors and activities that rely heavily on digital technologies and connectivity. In the digital economy, businesses and individuals engage in various online activities, such as e-commerce, digital services, digital media, online advertising, cloud computing, and data analytics. It involves the production, distribution, and consumption of goods and services that are facilitated or conducted through digital platforms, networks, and devices. The digital economy has transformed traditional business models, enabling new forms of entrepreneurship, innovation, and economic growth. It has also facilitated global connectivity and expanded market opportunities beyond geographical boundaries. The digital economy has a significant impact on various aspects of society, including commerce, employment, communication, education, and governance. It presents opportunities for economic growth, productivity gains, and efficiency improvements, but also raises challenges related to data privacy, cybersecurity, digital divide, and ethical considerations.
Digital Consumer: Digital consumer refers to an individual who engages in various online activities, transactions, and interactions as part of their consumption behavior in the digital realm. Digital consumers utilize digital technologies and platforms to access goods, services, information, and entertainment. Digital consumers engage in a wide range of activities, including online shopping, using digital payment methods, streaming content, accessing online services, participating in social media, and interacting with digital advertising. They may also create and share content, communicate with others, and seek information through digital channels.Digital consumers are characterized by their reliance on digital technologies, such as computers, smartphones, tablets, and the internet, to access and consume products and services. They may be geographically dispersed, allowing them to access and engage with businesses and services globally.
Big Data: Under the GDPR, personal data is defined as any information relating to an identified or identifiable natural person. This definition includes a wide range of data types that can be collected and processed, including those that fall under the umbrella of big data. Big data generally refers to extremely large and complex datasets that are often collected, analyzed, and processed using advanced technology and algorithms. While there is no specific legal definition of big data, the GDPR applies to the processing of personal data regardless of whether it is part of a big data set or not. The GDPR imposes obligations on organizations that process personal data, such as obtaining consent, ensuring transparency, providing data subject rights, implementing appropriate security measures, and complying with the principles of data protection. In summary, while there is no explicit definition of big data in EU law, the GDPR and other data protection regulations apply to the processing of personal data, including when it is part of big data sets.
Consent: In the context of European Union (EU) law, consent is defined under the General Data Protection Regulation (GDPR), which is the primary data protection legislation in the EU. According to Article 4(11) of the GDPR, consent is defined as: “Any freely given, specific, informed, and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.” This definition highlights the key elements of consent under the GDPR, including its voluntary nature, the need for specific information, clarity, and an affirmative action or statement indicating agreement. Consent serves as one of the legal grounds for the lawful processing of personal data within the EU.
Sustainability: Sustainability refers to the practice of meeting the needs of the present generation without compromising the ability of future generations to meet their own needs. It involves the responsible and balanced use of resources, consideration of social and environmental impacts, and the pursuit of long-term economic prosperity.
Innovation: Innovation is a process of creating and implementing new ideas, concepts, products, or services that result in a significant improvement or advancement in various fields. It involves introducing novel solutions, methods, or approaches that bring about positive change or offer added value. In general, innovation plays a crucial role in driving economic growth, fostering competitiveness, and improving the overall quality of life. It encompasses activities such as research and development, technological advancements, process improvements, and the introduction of new business models or practices.