Большие данные как ключевые мощности в антимонопольном регулировании цифровых рынков

Abstract

The article is devoted to the issue of applying the Essential Facilities Doctrine to big data for the purpose of antitrust regulation of digital markets. The concept of big data is revealed, which currently does not have a normative legal fixation in the legislation of the Russian Federation. The article identifies the difference between big data and regular data, between the organizational, managerial, economic and legal content of these phenomena of the digital age. Based on the analysis of scientific publications, law enforcement and judicial practice of antimonopoly agencies of foreign countries and Russia, the author systematizes the directions of using big data in competition in digital markets. The article also reveals the content of the doctrine of essential facilities in competition law. The author describes the key ideas of the scientific discussion on the application of the doctrine of essential facilities to big data. The article contains author’s suggestions and recommendations for the correct division of the complex of big data technology into competitive (AI) and infrastructure (data sets) components. If necessary, the doctrine of essential facilities can be extended to computing power, server data storage, data sets (in an unstructured form) of digital giants. The author believes that applying the doctrine of essential facilities to big data can eliminate the abuse of dominance by tech giants. But the application of the doctrine of essential facilities is not able to systematically change the state of affairs in digital markets. In order to remove the incentives of Internet giants to abuse dominance with the help of big data, it is necessary to separate from the Internet giants business units, that would exclusively provide non-discriminatory access to Big Data management services. And the competencies associated with the development and application of big data analytics (AI) technologies should be assigned to business units, that would compete in derivative digital markets independently.