No Such Thing as a Free Search: Antitrust and the Pursuit of Privacy Goals

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Alec J. Burnside, May 29, 2015

What is true of “free” lunches is true also of “free” search: there has to be a catch. By now it has dawned on most of us, as private individuals, how it is we are paying: not in cash, but in information about ourselves. The new dawn for the antitrust community needs to be the articulation of the consequences for antitrust analysis of this tectonic shift in business models.

The generational change in the leadership of the European Commission’s antitrust work has coincided with a sudden spurt of attention to this topic—although it is perhaps no coincidence. In her confirmation hearing before the European Commission, Margrethe Vestager described personal data as “the new currency of the internet.” In this and other remarks she took up the themes launched into public debate by the European Data Protection Supervisor (“EDPS”) in a discussion paper of March 2014 entitled Privacy and Competitiveness in the Age of Big Data: The interplay between data protection, competition law and consumer protection in the Digital Economy.

The echo at the time from DG Competition was muted, but a conference seeking to breathe new life into the EDPS’ unheard plea for debate in the antitrust community was held in February this year. The keynote address was by Giovanni Buttarelli, a privacy regulator speaking to an audience drawn primarily from the antitrust circuit. My remarks on the day sought to frame privacy and Big Data issues in the vernacular of antitrust. The growing interest in the topic is reflected in a number of conferences; and for example, in a consultation on the “The commercial use of consumer data” launched by the U.K.’s Competition and Markets Authority in January 2015.

The information collated by businesses about their customers evidently has an economic value justifying the cost of providing the service. The economics and business strategies around such datasets are not the focus of this contribution to CPI’s colloquium. Instead the high-level conclusion, easily and quickly drawn, is that antitrust needs to evaluate the role and significance of datasets when they arise in the factual matrix of any assessment—be it dominance, restrictive practices, or merger review. Antitrust is not somehow set aside by the fact that a Big Dataset comprises information about individuals that may also be subject to privacy or data protection requirements.

Such an overlap in applicable rules is of course nothing remarkable in itself (consider LIBOR, where malpractice is the subject of both antitrust and financial services regulation). But the question may fairly be posed as to the co-existence and interaction of these regimes.