The relationship between privacy and competition law is complex and contentious. May or should competition agencies consider business conduct’s negative impact on privacy when this effect was the consequence of a restriction or absence of competition? This contribution critically assesses the issues at stake in Case C-252/21 Facebook Inc. and Others v. Bundeskartellamt. It argues that competition agencies should be allowed to consider the legality of business conduct under the GDPR when applying competition law. In the age of data-based business models, it is unhelpful to look at competition and privacy issues in isolation. Judicious regulation of digital platforms requires an interdisciplinary and interinstitutional approach.

By Anne C. Witt[1]

 

I. INTRODUCTION

Privacy and competition law have long been considered separate areas of law, guided by different objectives and enforced by different agencies. Competition law aims to protect competition, and privacy law aims to protect the personal information of individuals. In the age of data-driven business models, however, where consumers receive free services in exchange for their data, the dividing lines have become blurred. If a digital platform restricts competition by foreclosing competitors or acquiring a competitive threat, and is consequently able to degrade its privacy standards, is this a relevant form of harm within the meaning of competition law? If a dominant platform uses its near monopoly position

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