Mapping the Inter-relation of Abuse of Dominant Position and Merger Control Regime vis-à-vis Big Data: The Curious Case of WhatsApp Privacy Policy

Abstract

The meteoric rise of the digital platforms and their increasing dominance can be easily considered the highlight of the latter half of the previous decade. Even though antitrust laws do apply to such online markets, the determination of the competitive strength of in these digital markets was often determined by the quantum of data accumulated by the entities. The article is an attempt by the authors to evaluate the feasibility of applicability of the existing competition law framework to the growing platform economies and the resultant implications of personal data being collected by such entities. For this research, the authors have outlined three specific questions. First, what is the inter-relation between the growing platform economy and merger control regime of a country? Second, what are the possible avenues of concerns that may arise due to collection of personal data? Finally, what are the possible enforcement challenges that would hamper the applicability of existing competition regimes to the digital platforms? The research is doctrinal research, and the authors have adopted a comparative-analytical research methodology for evaluating the above-mentioned research questions. The authors have considered the jurisdictions of the EU and India as the geographical scope for the research. The authors consider the following upon the conclusion of the study. First, the use and access of this data after the merger with companies with low turnover confer the acquiring enterprise a market power by which it can have an edge over its competitors in the market which will ultimately harm the competition in the market. Second, the digital market is data-driven; hence, collection of copious amounts of data places the big-tech players in a position of control, allowing them to indulge in exclusionary and exploitative conduct. Third, the assessment basis of combinations, more specifically in cases of data-based entities within the competition law, needs a serious re-assessment to include data within the scope of assessment as it is the primary asset in such cases.