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The intersection between
competition and data
privacy
Competition Committee – 13 June 2024
Carolina Abate - OECD Competition Division
Giuseppe Bianco - OECD Digital Economy Policy Division
A joint working paper from the OECD Competition
and Digital Economy Policy Secretariat
• Data protection and competition authorities apply
different conceptual frameworks and pursue different
public policy objectives
• The “data subject” or “individual” and the “consumer”
can overlap in digital markets
• Interventions in one policy area can enhance or hinder
the attainment of the goals of the other
 Growing attention around the concomitant application
of the two legal regimes
2
Background considerations
• Historical inclination to keep competition law and data
privacy as two separate realms
• Shift towards seeing collection and sharing of consumer
data as a concern relevant for competition in some
jurisdictions
• Data privacy may constitute a component of quality, on
which companies can compete
• This reflects broader emerging considerations on quality
and consumer choice in digital markets
3
Is data privacy an antitrust concern?
• The notion that ensuring effective price competition
would naturally address other dimensions of competition
has flaws
• If certain non-price parameters are not explicitly
considered, potential risk of harming competition on
those specific parameters (e.g. data privacy)
4
Integrationist approach in digital markets
“Integrationist approach” - data privacy has a role in
competition assessments, as a non-price parameter
of competition that can affect consumer welfare
• Companies that do not directly compete on data privacy but
build their business models and their market power on data
 data as an essential factor to compete
5
The interplay
Competition
authorities’
interventions can
influence data
privacy
Data protection
authorities’
actions can
enhance/hamper
competition
Concern
around
companies’
handling of
data
6
Is competition a data privacy law concern?
Different points of
departure
Data privacy law:
potentially less open
to incorporating
market
considerations
• Imbalance between data subject and controller
to:
– scale expectations regarding compliance
– evaluate gravity of harms to individuals
7
Potential avenues for competition
considerations
8
Data privacy as a competitive
advantage
Benchmarks for rights’ effectiveness
Withdrawal of consent
A competitive market for privacy-enhancing
technologies
Actions by data protection authorities
9
Complementarities and potential
challenges
Data-related measures, such as data portability,
interoperability or data access, can have divergent
effects on competition and data privacy
Should competition agencies actively pursue
antitrust remedies that are the most data privacy
enhancing?
Should data protection authorities prioritise
measures that promote competition?
10
Concluding remarks
Need for mutual understanding of the respective priorities
and ways of working, sharing expertise and resources, to
better appraise:
the functioning of new business
models
the issues on which each
community should focus to achieve
common goals in digital markets
In the long term, effective cross-regulatory co-operation is
paramount
THANK YOU

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The Intersection between Competition and Data Privacy – OECD – June 2024 OECD discussion

  • 1. The intersection between competition and data privacy Competition Committee – 13 June 2024 Carolina Abate - OECD Competition Division Giuseppe Bianco - OECD Digital Economy Policy Division A joint working paper from the OECD Competition and Digital Economy Policy Secretariat
  • 2. • Data protection and competition authorities apply different conceptual frameworks and pursue different public policy objectives • The “data subject” or “individual” and the “consumer” can overlap in digital markets • Interventions in one policy area can enhance or hinder the attainment of the goals of the other  Growing attention around the concomitant application of the two legal regimes 2 Background considerations
  • 3. • Historical inclination to keep competition law and data privacy as two separate realms • Shift towards seeing collection and sharing of consumer data as a concern relevant for competition in some jurisdictions • Data privacy may constitute a component of quality, on which companies can compete • This reflects broader emerging considerations on quality and consumer choice in digital markets 3 Is data privacy an antitrust concern?
  • 4. • The notion that ensuring effective price competition would naturally address other dimensions of competition has flaws • If certain non-price parameters are not explicitly considered, potential risk of harming competition on those specific parameters (e.g. data privacy) 4 Integrationist approach in digital markets “Integrationist approach” - data privacy has a role in competition assessments, as a non-price parameter of competition that can affect consumer welfare
  • 5. • Companies that do not directly compete on data privacy but build their business models and their market power on data  data as an essential factor to compete 5 The interplay Competition authorities’ interventions can influence data privacy Data protection authorities’ actions can enhance/hamper competition Concern around companies’ handling of data
  • 6. 6 Is competition a data privacy law concern? Different points of departure Data privacy law: potentially less open to incorporating market considerations
  • 7. • Imbalance between data subject and controller to: – scale expectations regarding compliance – evaluate gravity of harms to individuals 7 Potential avenues for competition considerations
  • 8. 8 Data privacy as a competitive advantage Benchmarks for rights’ effectiveness Withdrawal of consent A competitive market for privacy-enhancing technologies Actions by data protection authorities
  • 9. 9 Complementarities and potential challenges Data-related measures, such as data portability, interoperability or data access, can have divergent effects on competition and data privacy Should competition agencies actively pursue antitrust remedies that are the most data privacy enhancing? Should data protection authorities prioritise measures that promote competition?
  • 10. 10 Concluding remarks Need for mutual understanding of the respective priorities and ways of working, sharing expertise and resources, to better appraise: the functioning of new business models the issues on which each community should focus to achieve common goals in digital markets In the long term, effective cross-regulatory co-operation is paramount