Considerable debate exists as to the interaction of antitrust and privacy law. This nuanced debate encompasses many difficult questions: when is there a strong consumer preference for privacy, and when is there not? Under what circumstances do consumers happily trade data for service access? In an online world characterized by large platforms, is data collection a feature or a bug, and are the terms competitive? Can consumers and publishers internalize possible externalities from data use, or are there incentives for data processors to generate external costs? All these questions have profound implications for interoperability, because they affect how much use can be made of data across systems: the stronger the data protection right, the weaker the prospects of interoperability. The purpose of this article is to note significant moves in recent months towards a more consumer-centric approach to answering these questions. There is a prospect of using a well-known competition law device – the consumer welfare standard – to unite competition and privacy analyses, placing the consumer interest at the heart of the answers to these crucial questions.

By Stephen Dnes1

 

I. PERSONAL QUESTION: ROCKY ROAD OR COOKIE DOUGH?

It is a hot, sunny day. A gentle breeze is blowing in from the sea. You have just spent a wonderful afternoon at the beach gazing out at the horizon with an excellent beach read — and no, it is not an antitrust journal. You left your phone in the

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