THE INCLUSION OF DATA PRIVACY IN ANTITRUST ANALYSIS

Abstract

Consumer data is more precious and vulnerable in today’s digital economy than ever before. Today, business firms are collecting and storing personal data at a rapid pace with minimal legal safeguards in place. This has implications on both, data privacy policies and antitrust laws. For instance, when data-rich firms such as Microsoft-LinkedIn or Google-DoubleClick, amalgamate, data becomes a primary source of competitive advantage. These scenarios create both data privacy and antitrust concerns. Conflict arises when it is to be determined whether, during mergers, abuse of dominant position coupled with violations of data privacy should be dealt with by competition law or by unique data protection laws. This article seeks to resolve this conflict by first, clearly delineating the goal of an antitrust law and bringing privacy within the scope of antitrust analysis; second, distinguishing those privacy issues which should be addressed by competition law from privacy issues which form a subject matter of data protection law; and third, asserting the need for harmonising the two different-natured legislations of data protection and antitrust, with the ultimate objective of strengthening user data privacy. In order to achieve the above-mentioned objectives, this article first, describes the digitalisation of economy and privacy issues that stem from it; second, analyses the anti-competitive implications of consumer data; third, explores and analyses the role and need for antitrust analysis in privacy protection; fourth, focuses on the privacy-antitrust conundrum in the Indian competition landscape; and fifth, analyses how privacy can be seen as a competitive advantage with respect to growing awareness among consumers about the vulnerability of their data. Conclusively, this article establishes the protection of data privacy as a role of antitrust law in this digital economy.