This presentation by was made by Orla Lynskey (Associate Professor, LSE and Visiting Professor, College of Europe) during the discussion “The Evolving Concept of Market Power in the Digital Economy” held for competition authorities officials on 22 June 2022. More materials on the topic can be found at http://oe.cd/mpdecp. This presentation was uploaded with the authors’ consent.
2. lse.ac.uk/law
THE INTERDEPENDENCE OF
COMPETITION AND DATA PRIVACY
Data privacy
influences
competition
(can confer
competitive
advantages or
disadvantages)
Competition
influences the
extent and
effectiveness
of data
privacy rights
3. lse.ac.uk/law
MARKET POWER AND DATA
PRIVACY
How is market share calculated?
- As a proxy, time spent online will be more accurate than reach.
- More data processed as more time is spent online; more attention to
monetise for advertisers
What relevance is attributed to multi-homing?
- May be evidence of market power rather than competition
Are differences in privacy policies treated as complements
rather than competitors?
- Contrast Facebook/Whatsapp and Microsoft/LinkedIn
4. lse.ac.uk/law
MARKET POWER AND DATA
PRIVACY
Over-estimation of competitive constraint individuals can
exercise on firms
- Information and power asymmetries; limitations of rights such as data
portability.
Zero-price markets: substitutability assessments
- Should changes to privacy policy be used to assess substitutability?
- What factors would be relevant and how could lack of transparency be
addressed?
Ability to take into account non-economic considerations
- Media plurality analogy; other indicators relevant to determine risks
5. lse.ac.uk/law
UNDER THE RADAR
DATA POWER
Superior ability of companies to process data and control
data flows
- Volume and variety of data processing is relevant
- Reach of the data processing activity
- Ability to reduce competition on privacy across layers of the
digital ecosystem
Suggests the whole is more than the sum of its parts.
6. lse.ac.uk/law
The roots of digital infrastructures all leading to the trunk of
intermediary platforms which branches out into industrial and
societal sectors that all grow their own twigs and leaves
Van Dijck, Seeing the Forest for the Trees, 2021
7. lse.ac.uk/law
TOWARDS MORE SYSTEMIC
APPROACHES
Substantive: Articles 6(9) and 6(10) EU Digital Markets Act, containing
provisions on data portability and data access
Institutional:
- Recognition of interdependence
- Cooperation: UK’s DRCF (Coherence; Collaboration; Capability)
