Thesis
The interface between competition law and data privacy law : violation of privacy as an exploitative theory of harm under Article 102 TFEU
- Creator
- Rights statement
- Awarding institution
- University of Strathclyde
- Date of award
- 2024
- Thesis identifier
- T16921
- Person Identifier (Local)
- 201976818
- Qualification Level
- Qualification Name
- Department, School or Faculty
- Abstract
- The debate on the intersection between competition and privacy constitutes a major challenge and an opportunity to the existing competition law framework. Big Tech firms are powerful in controlling digital behaviour and market forces in an unprecedented way. Most online products and services, including social networks, search engines, and number independent interpersonal communication services are offered free of charge. In exchange to access online products and services, digital firms collect and process users' data for commercial purposes. The ability of digital firms to collect and process an unprecedented magnitude of personal data has opened new directions for large digital firms to abuse their market position. In fact, it is not to suggest that big data enabled more abuse, but ratherthat the novelty of challenges introduced by extensive data acquisition has triggered the competition law framework to accommodate the definition of abuse and different components such as market definition. Particularly important is that the market power of Big Tech firms is interlinked with threats to users' privacy through collection and use of personal data, which may fall outside the scope of competition law, while still having an impact on competition in online markets. In fact, the collection of personal data does not immediately constitute a violation of competition laws and can potentially offer a competitive edge. The key aspect that determines a competition law violation is not simply the mishandling of data or infringement of user privacy, but rather the presence of misconduct that actively harms competition. In other words, it is the conduct that goes beyond data misuse and privacy breaches and detriments to competition; at the same time Big Tech is adapting to new reality and more and more often becomes a guardian of privacy,posing thereby a new challenge for competition & data protection enforcers. This thesis focuses on assessing the extent to which the current framework of EUcompetition law can incorporate the privacy-related theory of harm. The objective is to assess the significance of protecting individuals' privacy as a fundamental aspect in establishing the exploitative abuse of dominance, under Article 102 of the Treaty on the Functioning of the European Union (TFEU). Specifically, the thesis explores instances where Big Tech firms exploit their dominant position through excessive data collection and/or limiting choice, subsequently harming competition, and direct affecting user well-being. This thesis posits the stance that zero-priced business models of online platforms and the ubiquity of data generation create strong incentives to acquire and process consumer data, introducing incentives to harm digital consumers' privacy. The thesis aims to assess how the existing EU competition law framework can address and regulate exploitative abuses, particularly concerning protection of individuals' privacy. Notably, this thesis argues that competition law might acknowledge privacy-related harms as forming exploitative theories of harm under Article 102 TFEU. As indicated by the rationale of the Asnef-Exquitax case and the CJEU's Facebook case, competition law will intervene only in instances where privacy related harms resulted in the distortion of competition. The analysis of the Digital Markets Act (DMA), the new EU tool to address large digital platform's conducts and ensure fair and contestable digital markets, remains outside the scope of this thesis, as the DMA is a parallel regime having no strictly legal impact on Article 102 TFEU. This thesis focuses on the assessment of Article 102 TFEU, which is more flexibleand can be applied to a broader range of unfair practices. Notably, Article 102 TFEU emphasises on enhanced transparency and predictability, aiming to prevent abuse of dominant position that could undermine healthy competition to the detriment of consumers and other market participants. Although traditional competition law and the DMA can be enforced in parallel, it is unclear whether and to what extent the Commission and the NCAs would continue to sanction digital gatekeepers under Article 102 TFEU.
- Advisor / supervisor
- Andriychuk, Oles
- Rodger, Barry
- Resource Type
- DOI
Relazioni
Articoli
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PDF of thesis T16921 | 2024-05-20 | Pubblico | Scaricare |