Updated: Jul 15, 2020
[Vishal Rajvansh & Dibya Prakash Behera]
[This article was first published on Cambridge International Law Journal Blog (CILJ), University of Cambridge, England. The copyright to this article is vested with CILJ only and is being republished on this blog without any intention to infringe the copyright owned by CILJ].
The choice of word in the current debate concerning antitrust and the digital economy is often not merely data, but "Big Data", another concept lacking a common definition. The phenomenon of Big Data has been catching the attention of competition practitioners over the past years, as it encounters and aids to streamline several traditional tenets of competition law. Big Data is one of competition law's latest buzzwords, inspiring a wealth of legal and economic literature, numerous conferences, and even studies by national competition authorities. Big Data is characterised by "the 4 Vs": volume, variety, velocity, and value. Volume refers to the fact that there are increasingly more data available. Variety means that companies now have access to more diversified data. Today a company is able to know not only someone's name or address, but also someone's dietary habits or purchasing history for example. Velocity means that companies are able to process, store, and analyse data almost in real-time, thanks to powerful IT tools. Lastly, value refers to a firm's capability to extract useful information from data.
As wicked as it can sound but we surrender our personal data the very day we enter the realm of a social media site. By clicking ‘I agree’, we are handing over our name, our date of birth, our e-mail address, and sometimes also a phone number and a picture. We are under the radar of social media sites. They communicate, build business models, and make analysis using the very data that we provide. Not restricted to that, our privacy is under attack from our friends, too. Our friends keep tagging us, they share locations of mutual gatherings, hand over their contacts list multiple times to various apps and websites. Thus, even if we aren't registered with some particularly social media outlet, it doesn't imply they don't have our personal information.
Big Data: Emerging Concern
Big Data is defined as large amounts of data (Russom, Managing Big Data, p. 5) which are “extensively analysed (…) using computer algorithms” (Article 29 Data Protection Working Party, Opinion 03/2013, p. 35). Marketing is based on specific market research, which comprises of systematic data collection, processing, and analysis. According to the Organisation for Economic Co-operation and Development (OECD), Big Data is a core economic asset that has the potential to create a significant competitive advantage for companies and drive innovation and growth (OECD background note, paras. 20, 64).
With the online business reaching new heights each passing day, the online market players have been able to collect and leverage a large amount of data owing to their market models. Unfortunately, access to these data enables such players to engage in data-driven innovations and renders upon them exceedingly unrelenting supremacy. Additionally, these data-rich players strengthen their position in the market by improving their service and making it more targeted for users. Pertinently, the larger the user base, the more will be the collection of data that improves the quality of its service and thereby acquires new users, known as the ‘user feedback loop’ (OECD background note, para. 22). Moreover, companies are able to explore user data to improve targeted advertisements and monetise their service which again attracts more users, termed ‘monetisation feedback loop’ (OECD background note, para. 22). Access to data can also enable firms to exploit new business opportunities. By reusing data gathered in the context of one service for a different purpose, undertakings may provide new services based on these data. While the world perpetually enjoys the advents of the internet, the big tech companies gain an edge and sew their monopoly on the roots of the collected data. Companies such as Google, Alibaba, Tencent, and Amazon are major companies with data-driven business models among the top companies by market capitalisation.
Antitrust Law and Big Data: Unfolding of a New Tussle
With such a huge competitive advantage for companies controlling such data sets, the question arises whether the collection and exploitation of data can raise entry barriers for companies entering the market and not having such assets at their disposal. The barriers can be of a technological, legal, or behavioural nature. The OECD has noted that market concentration and dominance are favoured by the economics of data. The organisation points out that data-driven markets can lead to a “winner takes all” situation where market success leads to concentration (OECD background note, paras. 27, 50).
Notably, the German cartel office in a press release informed Facebook “of its preliminary legal assessment in the abuse of dominance proceeding” due to its policies regarding the data collection clause which has availed no bargaining power to its user, courtesy its “dominant position” in social media. The German Authority's assessment focused on Facebook’s terms over data policy reserving Facebook a right to collect user data from third-party sources and to use them. These data would then be merged with user data collected on Facebook and linked to a specific user account no matter the settings or parameters that the user may have chosen. On such practices not being curbed, all the data-driven model companies will continue to collect data and, along with it, some of them will gain a significant amount of influence over consumers and their rivals until a common understanding has been reached by the major jurisdictions over the treatment of Big Data. A consistent understanding would benefit both consumers and businesses in respective jurisdictions. Conspicuously, even the European Commission has opened a formal antitrust investigation to assess whether Amazon's use of sensitive data from independent retailers who sell on its marketplace is in breach of EU competition rules - not to mention that Google has been fined thrice, racking up €8.25 billion in penalties. Besides selling its own products, Amazon allows third-party retailers to sell their goods through its website. In doing so, Amazon collects data about activity taking place on its platform. The European Commission will look in its formal investigation into the standard agreements between Amazon and third-party sellers and into the role of data in the selection of the winners of the “Buy Box”. In particular, the European Commission will look into how the use of accumulated marketplace seller data by Amazon as a retailer affects competition. Commissioner Margrethe Vestager, in charge of competition policy, said: "European consumers are increasingly shopping online. E-commerce has boosted retail competition and brought more choice and better prices. We need to ensure that large online platforms don't eliminate these benefits through anti-competitive behaviour.”
Imperatively, as much as these extravagantly advanced technologies ease human's work, digital transformation is not only limited to Big Data and digital platforms but also to how those high-end technologies are judiciously utilised to maximise opportunities and services. Tech giants such as Google and Walmart, if allowed to be in rightful possession of the Big Data, will obtain the potential to radically change the economic environment of any nation. Moreover, the creation of a monopoly in their relevant markets bestows upon them the power to alter the demand and supply, which ultimately is not good for a national economy.
While the Competition Commission of India exhibits a dearth of provisions enabling it to deal with the intricacies of the digital technologies used by internet giants, its European counterpart has exhibited signs of resilience and innovation. The absolute same practices, that the European Commission is already investigating are followed by Amazon in India; however, yet we see no objection being raised by the Competition Commission of India. Amazon plays the same tactics with its third-party merchants in India. The Competition Commission of India, however, is not equipped with the mechanism to deal with this particular situation yet, the worst part being there is no endeavour by the Competition Commission of India to resolve such digitally exploitative ploys.
Apart from a purely economic standpoint, data protection is vital - especially for nations like India, where the government is expanding the reach of the services and other modern amenities available with the help of the internet. All in all, with the steady growth of internet use, the pile of Big Data being collected and monitored by giant tech companies also bud rampantly. Unfortunately, in developing countries like India, there exists no measure to tackle the evidently indispensable concern. On the other hand, tech companies have mountains of resources at their disposal which can be used for whatever purpose they deem fit. The microscopic lens of institutions like the Competition Commission of India seems to have blurred while deciding on the antitrust concerns in the digital economy, the time being invariably ripe to adjust the focus.
[Vishal Rajvansh, a 3rd-year student at the National University of Study and Research in Law, Ranchi is the Founder-Editor of this blog (TCCLR).
Dibya Prakash Behera, a final year student at the National University of Study and Research in Law, Ranchi is the Founder-Editor of this blog (TCCLR). He is scheduled to join the Funds Formation team at Nishith Desai Associates, Mumbai.]