In Praise of an Empowerment Disclosure Regulatory Approach to Algorithms

Abstract

2018 has been the year of awakening for the supporters of the free flow of data (i.e. the proposal for a Regulation on a framework for the free flow of non-personal data in the European Union of 13 September 2017). The Russiagate and Cambridge Analytica chronicles have shown the world how fragile and problematic privately managed data protection and data accumulation by a small set of big firms can be. In times of sudden change, some issues related to the interface between competition law and data protection, which were highly debated and seemed mainly settled in the doctrinal debate, have returned with urgency. The re-combination of personal and non-personal data acquired through the web by dominant digital firms is one of those issues. Re-combination implies that data belonging to an individual are collected to form one or several (behavioural) profiles, and, most importantly, these profiles are commercially exploited for selling ‘‘targeted’’ products or services and/or eventually resold to other companies. Thus, although it may create economies of scale and scope, re-combination also works as leverage for big data firms’ (especially platforms’) market power, by allowing its accumulation and further exploitation. I will deal with those shortcomings and suggest possible solutions.