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Europe Data Protection Digest | Notes from the IAPP Europe Managing Director, 9 Nov. 2018 Related reading: Perspective: How proper data can reduce algorithmic discrimination

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Greeting from Brussels!

Winter has truly kicked in here at the heart of Europe; the layers and the scarves are out. However, data protection as a headliner shows no signs of going into hibernation anytime soon. Following on from the successful 40th International Conference of Data Protection and Privacy Commissioners a couple of weeks ago — featuring the role of ethics in the digital world — there is still much to talk about in the field.

Last week, for the IAPP Privacy Advisor, Jen Baker sat down with EU Chief for Competition Policy Margrethe Vestager to talk about the future role and intersection of data with competition policy and enforcement. Notably, Commissioner Vestager is no stranger to big tech and has shown a steely determination and appetite to take on the "Big Boys," having already fined Google twice with staggering fines in the billions (Google Shopping and Android). Vestager also announced last month that she was looking into Amazon, more specifically looking into how Amazon uses data from retailers selling via its e-commerce marketplace. To be accurate, it’s not a formal probe, but a case has been formally opened to try to get a sense of the big picture. In a nutshell, the European Commission is looking to determine whether or not third-party merchants selling via Amazon’s platform are at a competitive disadvantage vis-a-vis the Amazon products being sold. The question being asked is: Does Amazon make use of the purchasing data of the smaller merchants to its own advantage? Vestager is known to have said in previous statements that if a company’s use of data distorts a competitive playing field to the extent that it outweighs the benefits (at large), the EC may have to step in to restore the balance.

Unfortunately, Vestager was on the slate to speak at the recent privacy commissioners conference in Brussels but had to cancel last minute. There is an increasing overlap between privacy and competition, drawing the attention of industry regulators and creating a need for dialogue across responsibilities. Let’s start to recognize that. Giovanni Buttarelli has said previously that, in his opinion, EU data protection watchdogs will be — or likely will be — called upon in the broader competition (enforcement) fight by supporting and being involved in anti-competitive investigations in the future.

Vestager’s position seems clear: "Personal data has become a valuable commodity." Ensuring that that data is not utilized in a way that hurts consumers is increasingly at the foremost of her mind. She is not alone in this regard. Back at the end of 2017, Germany’s Federal Cartel Office was accusing Facebook of using its dominant social networking position to coerce users into allowing it to collect data about them from third-party sources, such as websites with “like” buttons and more. At the time, Andreas Mundt, head of Germany’s cartel office, stated, “Data protection, consumer protection, and the protection of competition, interlink where data is a crucial factor for the economic dominance of a company.” Essentially, the idea that the extent of data holdings (by one company) can create an unfair advantage is a relatively new concept in the realm of competition or anti-trust policy; nevertheless, in a progressively digital economy, the question is whether we can continue to ignore it?

Data protection and privacy have the potential to become an increasingly relevant pillar of competition policy. The flip side of that coin is how this will impact consumers and companies down the line.

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