Abstract
This article analyzes the interaction of EU competition, consumer and data protection law in the digital economy. We compare the objectives, rules and enforcement structures of these legal regimes, and we discuss market failures that justify regulatory intervention in digital markets. In particular, the Facebook investigations in Germany and Italy are selected as a case study. The Bundeskartellamt’s investigations are remarkable, being the first in which an exploitative abuse of dominance involving a digital platform has been decided under competition law. These we compare with their Italian counterpart, where the AGCM has recently sanctioned Facebook for behavior similar to that investigated in Germany. Yet, the Italian case has been decided under consumer, rather than competition law. This shows the regulatory dilemma faced by European antitrust authorities, which are currently struggling to find a solution to the market failures arising in digital markets.
Highlights
The digital economy is characterized by rapid technological developments and the combination of economic and digital power
The 2019 Facebook decision is interesting because it is the first case in which an exploitative abuse of dominance involving a digital platform has been sanctioned under competition law
Instead of solely looking at economic efficiency, we borrow from Alessandro Acquisti, asking: “will market forces be able to maintain a desirable balance between privacy and disclosure, in a world where most of our personal and professional lives unfold trails of electronic data, and where powerful economic interests favor information availability over information protection?”16 We start by analyzing the role of consent under the General Data Protection Regulation (GDPR), since this legal framework significantly predetermines and shapes the behavior of market players
Summary
The digital economy is characterized by rapid technological developments and the combination of economic and digital power. The lack of informed consent by platform users in combination with the so-called “privacy paradox” leads to a lack of transparency in the terms of use used by online platforms and to the inability of online markets to cater for the privacy preferences users have These are two examples of market failures that characterize digital markets. The provisions of the Unfair Commercial Practices Directive, as transposed by the EU Member States at the national level, are applicable to online transactions involving final consumers.[2] Last but not least, in the European Union, market failures in digital markets can be tackled via antitrust law. The 2019 Facebook decision is interesting because it is the first case in which an exploitative abuse of dominance involving a digital platform has been sanctioned under competition law. Consolidated Version of the Treaty on the Functioning of the European Union, Oct. 26, 2012, 2012 O.J. (C 326) 47–390
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