Taming Tech Giants: The Neglected Interplay Between Competition Law and Data Protection (Privacy) Law

Published date01 June 2022
Date01 June 2022
Subject MatterArticles
The Antitrust Bulletin
2022, Vol. 67(2) 280 –301
© The Author(s) 2022
Article reuse guidelines:
DOI: 10.1177/0003603X221084145
Taming Tech Giants: The Neglected
Interplay Between Competition Law
and Data Protection (Privacy) Law
Wolfgang Kerber*
The debate about the economic power of large tech firms has led to the insight that due to the key role of
personal data on large digital platforms competition and privacy issues are deeply intertwined. This leads
also to a complex relationship between competition law and data protection (or privacy) law, and—also
from an economic perspective—the need for policy-makers to take into account the interplay between
both legal regimes. This article analyzes current discussions about (1) how to integrate privacy effects
into traditional competition law and (2) the far-reaching ref orm discussions about taming the power of
the large tech firms, for example, the Digital Markets Act in the European Union or the new antitrust
discussion in the United States, with respect to the question whether and to what extent they take
into account this interplay between competition policy and data protection (or privacy) law. It is
surprising that also the second reform discussion, which directly intends to target the power of the
large tech firms, does not take into account sufficiently this interplay and the ensuing need for a
more collaborative approach between these policies. Therefore, the opportunities of developing a
more effective joint strategy for achieving better both competition and privacy are still missed.
competition law, digital platforms, data protection, privacy law, Digital Markets Act, data collection
I. Introduction
The large tech firms with their digital platforms are transforming the entire economy and society in a
deep and unprecedented way. From a competition and antitrust law perspective the huge economic
power of these firms is currently in the center of policy discussions in the European Union, the United
States, and many other countries.1 Particularly important is that the market power of these firms is also
deeply intertwined with the increasing threats to privacy through their vast collection and use of
*University of Marburg, Marburg, Germany
Corresponding Author:
Wolfgang Kerber, University of Marburg, Am Plan 2, Marburg, D-35032, Germany.
Email: kerber@wiwi.uni-marburg.de
1084145ABXXXX10.1177/0003603X221084145The Antitrust BulletinKerber
1. For the market failure problem through the market power of the large digital platforms, see, for example, Jacques Crémer
et al., Competition Policy for the Digital Era, RepoRt to the euRopean Commission (2019), https://ec.europa.eu/competi-
tion/publications/reports/kd0419345enn.pdf; Digital Competition Expert Panel, Unlocking Digital Competition, FuRman
RepoRt (Mar., 2019), https://www.gov.uk/government/publications/unlocking-digital-competition-report-of-the-digital-
competition-expert-panel; Stigler Committee on Digital Platforms, Final Report (2019), https://www.chicagobooth.edu/
Kerber 281
consumer data. This again is linked also to the additional market failure of information and behavioral
problems of consumers regarding “notice and consent” solutions about their data, which is adding to
their lack of control over their data.2 The ensuing far-reaching control over consumer data by the large
tech firms again strengthens and entrenches their economic power and control over digital markets and
ecosystems. Therefore, from an economic perspective, two market failure problems, a competition
problem and an information and behavioral problem of consumers, exist simultaneously with respect
to the digital platforms of the large tech firms.
Already very early in the emerging discussions about Big Data, the European Data Protection
Supervisor (EDPS) presciently recognized in a Preliminary Opinion in March 20143 that the key role
of digital platforms (with business models that capture the value of the vast amount of personal data of
consumers that they collect as payment for “free” services) would be a challenge that is simultaneously
relevant for several policies. In its report “Privacy and competitiveness in the age of big data: The
interplay between data protection, competition law and consumer protection in the Digital Economy,”
the EDPS did not only analyze the relevance of this problem for all these policies in the European
Union, it additionally, emphasized the necessity (1) to analyze the interfaces between competition law,
consumer protection, and data protection (with their “convergences and tensions”4) and (2) “to explore
the scope of closer coordination between regulators.”5 The EDPS, in particular, claimed that
the lack of interaction in the development of policies on competition, consumer protection and data protection
may have reduced both the effectiveness of competition rules’ enforcement and the incentive for developing
services which enhance privacy and minimise potential for harm to the consumer.6
With this Opinion, the EDPS has developed a vision and a program for research and policy-making,
which until today is highly relevant for current policy discussions about digital platforms and the eco-
nomic power of large tech firms. Although there has been some discussion about a more integrative and
collaborative approach between these policies,7 this paper claims that we are still at the beginning of
understanding the interplay between these policies and of taking it properly into account in our discus-
sions about policy-making with regard to digital platforms and personal data.
The objective of this article is to analyze current policy discussions about the relationship between
competition law and data protection (or privacy) law and the economic power of the large tech firms
with their digital platforms with respect to the question, whether they sufficiently take into account the
2. For the discussion about this second market failure and the ensuing problems for “notice and consent” solutions regard-
ing data, the privacy paradox, and behavioral manipulation through “dark patterns”, see Alessandro Acquisti & Jens
Grossklags, Privacy and Rationality in Individual Decision Making, 3 ieee seCuR. pRiv. 24 (2005); Patricia A. Norberg,
Daniel R. Horne & David A. Horne, The Privacy Paradox: Personal Information Disclosure Intentions versus Behaviors,
41 .J Consum. aFF. 100 (2007); Daniel J. Solove, Privacy Self-Management and the Consent Dilemma, 126 haRv. L. Rev.
1880 (2013); Spyros Kokolakis, Privacy Attitudes and Privacy Behavior: A Review of Current Research on the Privacy
Paradox Phenomenon, 64 Comput. seCuR. 122 (2015); Jamie Luguri & Lior Jacob Strahilevitz, Shining a Light on Dark
Patterns, 13 J. Leg. anaL. 43 (2021); Alessandro Acquisti et al., Secrets and Likes: The Drive for Privacy and the Difficulty
of Achieving It in the Digital Age, 30 J. Consum. psyChoL. 736 (2020).
3. European Data Protection Supervisor, Preliminary Opinion of the European Data Protection Supervisor—Privacy
and Competitiveness in the Age of Big Data: The Interplay Between Data Protection, Competition Law and Consumer
Protection in the Digital Economy (2014) https://edps.europa.eu/,datahttps://edps.europa.eu/data-protection/our-work
4. Id. at 37.
5. Id. at 38.
6. Id. at 37.
7. cf. Francisco Costa-Cabral & Orla Lynskey, Family Ties: The Intersection Between Data Protection and Competition in
EU Law, 54 Common maRk. Law Rev. 11 (2017); Inge Graef et al., Fairness and Enforcement: Bridging Competition,
Data Protection, and Competition Law, 8 int. Data pRiv. Law 200 (2018); Inge Graef & Sean van Berlo, Towards Smarter
Regulation in the Areas of Competition, Data Protection and Consumer Law: Why Greater Power Should Come with
Greater Responsibility, 12 euR. J. Risk ReguL. 674 (2020), https://doi.org/10.1017/err.2020.92.

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