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

• Author: Wolfgang Kerber
• DOI: 10.1177/0003603X221084145
• Published date: 01 June 2022
• Date: 01 June 2022
• Subject Matter: Articles

https://doi.org/10.1177/0003603X221084145

The Antitrust Bulletin

2022, Vol. 67(2) 280 –301

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DOI: 10.1177/0003603X221084145

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Article

Taming Tech Giants: The Neglected

Interplay Between Competition Law

and Data Protection (Privacy) Law

Wolfgang Kerber*

Abstract

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.

Keywords

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

research-article2022

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/

research/stigler/news-and-media/committee-on-digital-platforms-final-report.

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

/publications/opinions/privacy-and-competitiveness-age-big-data_en-protection/our-work/publications/opinions/

privacy-and-competitiveness-age-big-data_en.

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.