Current Legal and Economic Problems of Privacy Protection, Data Sharing, and Market-Opening in the Digital Economy

Abstract

This paper is dedicated to my esteemed colleague Richard S. Markovits. It deals with ownership of data and with alternative methods to regulate Internet platform providers. It rejects the view that the subjects of information should have ownership rights over their personal data, which extend beyond what is necessary for privacy protection. Also, data controllers should not have an exclusive ownership right but share anonymized data with competitors. Even though the wealth of data harvested and stored by Internet firms are only weakly protected by trade-secret law, this together with effective encryption technologies develops into an exploitative de facto property over information, if effective market opening rules do not exist. The paper shows that the rule of abuse of dominant position of traditional competition law could not sufficiently check unfair trade practices of platform providers. Its adjudication is information intensive and leads to overly lengthy and costly proceedings. The Digital Markets Act of the European Union drew a radical conclusion from these experiences and regulates the biggest Internet firms with simple per se rules, which are relatively easy to administer but less flexible. Still, the Digital Markets Act should be welcomed as an important step forward.