A confusing relationship between privacy and competition law — a way forward for EU competition law and algorithms pricing

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Gorecka, Arletta (2020) A confusing relationship between privacy and competition law — a way forward for EU competition law and algorithms pricing. Indian Journal of Artificial Intelligence and Law, 1 (1). pp. 7-28.

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Abstract

The unprecedented magnitude of data collection could raise challenges for both society and legislation, as it has emerged that the personal data is seen as a tradable commodity, placing entities in a position where data helps them to achieve a stronger position in the market. Big Data in simplest terms constitutes large collections of information about end-users. The vast scope of data collected includes geo-location, search queries and/or online purchases and browsing his- tory. Digital platforms collect such data directly from their users, or via cookies. Algorithms in itself might be seen as a worrying trend, due to its dynamic, and widely undiscovered nature. Recently, the German Competition Authority, in its proceeding against Facebook, indicated that collection of data on an unprece- dented scale could result in data protection being of a weaker force to sufficiently address the apparent perils, and therefore, the use of competition law could be adequate to assess the entrepreneurial activity of a digital company. Within the scope of the EU Commission, the Google Shopping case demonstrated the care- fulness in decision taking and relied on the already established competition law rules to determine the effect of the Google’s conduct on the relevant market. A more nuanced approach has been introduced by the BKA, in their proceeding against Facebook, indicating that competition law and data protection could be interchareably applied to the competition assessment. Personalised pricing, unquestionably, harms final consumers. Within the re- mits of Article 102 of the TFEU, it is identifiable that there are two types of abuses prohibited: exploitative and exclusionary. Yet, the wording of Article 102 TFEU showed that there are no direct mention as to whether only the provision harming industrial consumers or final consumers should be sanctioned. By considering the algorithmic price spectrum on competition law, the cases such as the BKA’s Facebook case, and any subsequent cases, might act as an example that privacy breaches could also be an important component of algorithmic pricing, which could be characterised by an actual price. Hence, it might be an indication that potentially privacy concerns might be seen as indirectly influencing competition law assessment. Also, the algorithmic pricing could be seen as being impacting individuals’ lives and their decision making processes by interfering with their behavioural autonomy. Yet, there are also pro-competitive aspects identifiable too. This paper looks at the algorithms pricing and the privacy concerns; a prolif- eration of the data-fuelled companies lead to several issues under EU competition law and how to approach them. This paper considers a relationship between algo- rithms pricing, data protection concerns and competition law. This paper is going to suggest that the algorithm pricing does not require new legislative changes un- der the EU competition law regime. However, they require careful consideration since it is difficult to detect them. Therefore, it is aimed to propose that privacy concerns appear to hold a multidimensional approach to competition legal regime and require careful considerations in competition law assessment, yet they could only indirectly influence the competition legal order, and might not be seen as proxy in which competition law could be amended. To sufficiently map their complex relationship, it is necessary to map commonalities and, the current, mis- alignments. Therefore, this research presents a legal overview of the EU Com- mission and the EU Member State approach to the relationship of data protection and competition law debate. Lastly, yet, the author does not attempt to present features which could trigger the intervention but provides a discussion of a poten- tial roadmap of this complex relationship between competition law, privacy con- cerns and algorithms pricing, which encompasses the competition law enforce- ment targeting discriminatory pricing.

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