Is “Privacy” a Means to Protect the Competition or Advance Objectives of Innovation and Consumer Welfare?

Is “Privacy” a Means to Protect the Competition or Advance Objectives of Innovation and Consumer Welfare?

Arletta Gorecka (University of Strathclyde, UK)
DOI: 10.4018/978-1-5225-9489-5.ch006

Abstract

The relationship between competition law and privacy is still seen as problematic with academics and professionals trying to adequately assess the impact of privacy on the competition law sphere. The chapter looks at the legal development of the EU merger proceedings to conclude that EU competition law is based on the prevailing approach and assesses decisions involving data through the spectrum of keeping a competitive equilibrium in hypothetical markets. Secondly, it considers the legal developments in the EU Member States' practice, which acknowledges the apparent intersection between the phenomena of competition law and privacy. This chapter attempts to propose that privacy concerns appear to hold a multidimensional approach on competition legal regime; nevertheless, it does not result in the need of legal changes within the remits of competition law, as the privacy concerns are already protected by the data protection and consumer protection law.
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EU law, by its foundation, aims to promote peace, well-being of its citizens, freedom, sustainable and economic development (Art 1, TEU). The rules adopted on competition law and data protection law reflect on the fundamental goals under the Treaty on the Functioning of the European Union’s (TFEU, 2008) separate legal bases. Hence, the purpose of these areas intersect. The focus of this section is to offer a brief explanation of competition and data protection rules.

Key Terms in this Chapter

Competitive Process: An action to provide an open and equal opportunity to parties on a market.

Digital Market: An internet-based structure where demand and supply forces operate, which allow sellers and buyers interact. In digital market, the marketing of services or products also might rely on digital advertising, mobile phones and any another digital platform. Chanels on digital market are based on data acquisition.

Innovation: A method allowing an undertaking to create a new service/product. In digital market, digital platforms, which offers free service to their users, may only finance innovation through selling data to advertising platforms.

Theories of Harm: A measurement of competitive process harm, recognized by Article 102 TFEU. Competition law recognizes exploitative and exclusionary theory of harm. From a digital economy angle, privacy might be seen as expanding both exploitative and exclusionary theories of harm.

Big Data: The gigantic digital databases, held, acquired, and used by governments, companies or other organizations, and later analyzed through the use of algorithms.

Privacy: A right recognized in the Charter of Fundamental Rights (2010) AU107: The in-text citation "Fundamental Rights (2010)" is not in the reference list. Please correct the citation, add the reference to the list, or delete the citation. , and the GDPR. For many, it is a dynamic rights. The latest practice of the EU Member States indicated that privacy could be potentially used as expanding the theorems of harms.

Consumer Welfare: One of the goals of competition law, which refers to individual benefit obtained from goods/services consumption.

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