“Online platforms, Big Data and privacy: what role for competition policy?” VUB Symposium 23 June Alfonso Lamadrid

1. Setting the scene - why are we here?

EDPS report on Privacy, Consumers, Competition and Big data (June 2014) Facebook/Whatsapp decision (October 2014) “Platform” regulation debate ( ) Opening of Facebook abuse case in Germany (March 2016) Joint German-French report on Competition and Big Data (May 2016) What’s next?? 2. Do competition authorities know how to do it?

Data in competition law raises mainly two (of the oldest) issues: – Personal data  Privacy issues (Should we factor in considerations alien to competitive ones? Goals of competition law?) – Big Data  Scale/Network effects (Is scale a good or a bad thing? How do we deal with it?) Data increasingly important (esp. in two-sided markets), but ultimately just an asset (all assets special in their own way) Competition law has the flexibility, tools, experience and habit to deal with any issue (if those ever came up) 3. The broader substantive (non?) issues

Can data be a barrier to entry? – Bain v Stigler notions of barrier – It might, but not necessarily Market definition – Challenges inherent to multi-sidedness – Dynamic considerations – A relevant data market? (dissent in FTC’s Google/DoubleClick) = Proposal akin to running cases on sand, not chipsets ! Can date be a source of market power? – Plausible (e.g. Thomson/Reuters) but how likely? On the facts, not in abstract – Depends on whether it is replicable, tradeable (affordable), unique, exclusive, important (also over time), viable scale, possible diminishing returns, etc. – Not just useful, but indispensable: Substitutes may exist (even if imperfect) (e.g. multi- homing + different data in different layers: Telefonica/O2/Everything Everywhere (2012)). Size it’s not what matters, it’s how you use it! – Companies also compete in what data to pick, how to collect and process it, and how to use it – talent- intelligence= “skill, foresight and industry” 4. Market definition & Market power

Widely acknowledged that big data can result in: improvements to products or services; exploitation of new business opportunities; more target-oriented business models; often provides services that are free to consumers “Big data and analysis increase economic output, reduce crime, improve public health and safety, increase voter turnout, boost energy efficiency, improve weather forecasts, and enhance agricultural yields” (Tucker & Wellford, 2014). Accross all sectors: healthcare, scientific research, intelligence/security, smart cities, etc. Challenge: how do we account for efficiencies in legal assessment? 5. Efficiencies

General conjectures about how established theories could apply in extreme cases (same logic that applies to other assets) -Refusal to deal/ “essential facility”? -Used as buzzword, but highest standard for intervention in EU competition law -Discriminatory access to data? -Exclusivity? -Data as a vehicle for (anticompetitive?) price discrimination? -Data as a facilitator of “technological collusion”? (case C-74/14, Eturas) -Data protection as element of non-price competition -Unfair Trading conditions? Breach of privacy regulations? (Facebook German case)? 6. Competition law risks?

Further reading post-12/ 22-on-the-nature-goals-means-and-limitations-of-competition-law/ comment-on-the-bundeskartellamts-investigation/ the-scope-of-concerted-practices-and-on-technological-collusion/

Alfonso Lamadrid BRUSSELS EU. & Competition Law