Can data exploitation be properly addressed by competition law? A note of caution
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Concurrences REVUE DES DROITS DE LA CONCURRENCE | COMPETITION LAW REVIEW Can data exploitation be properly addressed by competition law? A note of caution Law & Economics l Concurrences N° 1-2021 l pp. 75-82 Jörg Hoffmann joerg.hoffmann@ip.mpg.de Doctoral Student and Research Fellow Max Planck Institute for Innovation and Competition, Munich Omar Vásquez Duque omarvd@stanford.edu J.S.D. and M.A. (Econ) Candidate Stanford University John Olin Fellow in Law and Economics Stanford University
Law & Economics
Jörg Hoffmann
Can data
constitutes a violation of the publisher's rights and may be punished by up to 3 years imprisonment and up to a € 300 000 fine (Art. L. 335-2 Code de la Propriété Intellectuelle). Personal use of this document is authorised within the limits of Art. L 122-5 Code de la Propriété Intellectuelle and DRM protection.
joerg.hoffmann@ip.mpg.de
Ce document est protégé au titre du droit d'auteur par les conventions internationales en vigueur et le Code de la propriété intellectuelle du 1er juillet 1992. Toute utilisation non autorisée constitue une contrefaçon, délit pénalement sanctionné jusqu'à 3 ans d'emprisonnement et 300 000 € d'amende (art.
L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
Doctoral Student and Research Fellow
exploitation be
Max Planck Institute for Innovation and
Competition, Munich
Omar Vásquez Duque*
omarvd@stanford.edu
J.S.D. and M.A. (Econ) Candidate properly addressed
by competition law?
Stanford University
John Olin Fellow in Law and
Economics
Stanford University
A note of caution
ABSTRACT Introduction
In this brief piece of caution, we argue that
competition law is not well-suited for dealing 1. Competition law is experiencing a remarkable revival. The U.S. antitrust
with exploitative data practices. As consumers authorities have recently sued both Google and Facebook, and antitrust
usually act as if they did not value their policy was a matter of debate in the last presidential elections.1 The European
privacy, legal remedies that neglect what
social scientists call “the privacy paradox”
Commission just presented charges against Amazon2 and fined Google for alleged
are unlikely to improve the current status quo. abuses in the markets of mobile operating systems, and mobile communication
We claim that privacy exploitation is better applications and services.3 The increased awareness about the role of antitrust
explained by informational and behavioral in a well-functioning economy encompasses not only its political salience and
failures. Our analysis has important policy
and legal implications as is shown in our its enforcement but also academic proposals that suggest expanding antitrust’s
assessment of the German Facebook domain to incorporate broader goals, such as political power and industrial
Case. Under plausible assumptions, concentration.4 While those ends may influence the principles of competition
if consumer demand does not police
the privacy attribute, any competitor
policy in some jurisdictions, another group of scholars recommends using
will exploit it and thus competition will fail competition laws to tackle excessive data collection, inequality, sustainability,
to yield higher privacy protection standards. among other economic or social failures. These goals would greatly expand the
Dans cet article, nous soutenons que le droit scope of antitrust policy in most jurisdictions. However, many of these market or
de la concurrence n’est pas bien adapté social failures are precisely the result of free-market competition.5
pour traiter des pratiques d’exploitation
des données. Les consommateurs agissant
généralement comme s’ils n’attachaient 2. Competitive markets, for better or worse, provide what consumers reveal they
pas d’importance à leur vie privée, les voies want with their purchasing behavior. Either by failing at rewarding fair-trade
de recours juridiques qui négligent ce companies paying a couple of extra pennies for bananas that were not produced
que les spécialistes des sciences sociales
appellent le «privacy paradox» ont peu
by employing children,6 by driving fuel-inefficient cars, or by “agreeing” to share
de chances d’améliorer le statu quo actuel. one’s data in return for getting a service “for free,” consumers send important
Nous affirmons que l’exploitation des données signals to the supply side of the market on what we want and how much we are
personnelles s’explique mieux
willing to pay.7 While our moral principles tell us that child labor, pollution, and
par les défaillances informationnelles
et comportementales. Notre analyse
a d’importantes implications politiques et
juridiques, comme le montre notre évaluation
1 A. Douglas Melamed, Antitrust Law and Its Critics, (January 14, 2020) Antitrust L. J. 83 (forthcoming), available at SSRN:
de l’affaire Facebook en Allemagne.
http://dx.doi.org/10.2139/ssrn.3519523.
Selon des hypothèses plausibles,
si la demande des consommateurs 2 https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2077.
ne contrôle pas l’attribut de la vie privée,
tout concurrent l’exploitera et la concurrence 3 https://ec.europa.eu/commission/presscorner/detail/it/MEMO_15_4782.
ne parviendra donc pas à produire 4 For a summary of some of these proposals, see H. Hovenkamp, Antitrust’s Borderline, (August 11, 2020) University of Pennsylvania,
des normes de protection de la vie privée Institute for Law & Economics Research Paper No. 20-44, available at SSRN: http://dx.doi.org/10.2139/ssrn.3656702.
plus élevées.
5 See, e,g., G. A. Akerlof and R. J. Shiller, Phishing for Phools: The Economics of Manipulation and Deception (Princeton University
Press, 2015); O. Bar-Gill, Seduction by Contract: Law, Economics, and Psychology in Consumer Markets (Oxford University Press,
2012), chap. 1; O. Vásquez Duque, No Alarms and Many Surprises: Salience as a Basis for Excessive Pricing Intervention in an
Antitrust Context, Journal of Competition Law & Economics 16, No. 3 (2020), https://doi.org/10.1093/joclec/nhaa017.
* The authors are ordered alphabetically. Omar 6 See, e.g., Lidl Backs Away from Fairtrade Bananas, Banana Link, May 20, 2019, https://www.bananalink.org.uk/news/lidl-
Vásquez Duque is the corresponding author backs-away-from-fairtrade-bananas.
invited to contribute to this issue. The author
acknowledges the thoughtful feedback provided 7 F. A. von Hayek, Der Wettbewerb als Entdeckungsverfahren, in Freiburger Studien (1969) 249–65; M. S. Snow, Competition
by A. Douglas Melamed, Daniel Sokol and as a Discovery Procedure, The Quarterly Journal of Austrian Economics 5, No. 3 (September 1, 2002): 9–23, https://doi.
Mark Lemley. org/10.1007/s12113-002-1029-0.
Concurrences N° 1-2021 I Law & Economics I Jörg Hoffmann, Omar Vásquez Duque I Can data exploitation be properly addressed by competition law? 75selling out our privacy are reproachable, our consumer Section III assesses the German case, criticizing its shift
constitutes a violation of the publisher's rights and may be punished by up to 3 years imprisonment and up to a € 300 000 fine (Art. L. 335-2 Code de la Propriété Intellectuelle). Personal use of this document is authorised within the limits of Art. L 122-5 Code de la Propriété Intellectuelle and DRM protection.
behavior is inconsistent with our reported ethical towards a normative causality based on hypothetical
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L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
identity. counterfactuals drew on misleading empirical evidence.
Section IV concludes echoing what experts report have
3. Markets may fail at achieving an optimal outcome for already suggested: that new regulatory bodies are needed,
several reasons. Monopoly power is just one of those which should have the expertise and the power to design
reasons. Other commonly accepted bases for regulatory adequate rules to regulate the challenges brought by the
intervention are informational problems, and externalities.8 digital economy, notwithstanding the possibility that
Interestingly, what many academics are arguing when competition authorities could count on a specialized unit.
they advocate for the expansion of antitrust is the use of
competition laws to address problems unrelated to the lack
of competition, or actually caused by competition itself.9
Privacy exploitation, we claim, is one of these cases where I. Privacy related
market failures,
competition does not discipline market outcomes. Either
because of informational failures, bounded rationality, or
a combination of both, most people overlook the privacy
dimension when comparing among different products
and services.10 If demand forces do not discipline this competition law,
product feature, sellers will not compete on providing less
intrusive data protection standards for their customers.
Thus, insofar consumers neglect the privacy attribute in
and market regulation
their decision-making, actual or potential competition—
entry—will not discipline this product attribute. 1. Competitive markets, inertia
4. In this brief note of caution, we focus on the recent
and informational market failures
German Facebook case as an example of the challenges 5. According to traditional economic theory, absent
that privacy protection brings to the institutions and the externalities, monopoly power, and information
enforcement of competition laws. This note offers more asymmetries, the free functioning of markets provides
questions than answers about the case. Yet, we hope what people want at lowest cost.11 The market mechanism
that our case analysis will allow a better formulation also sends important information regarding what goods
of the questions arising from the competition and and services people value and how much they are willing
privacy conundrum. In particular, we discuss challenges to pay for them, encouraging the development of products
dealing with theories of competitive harm that rely on that satisfy unmet needs, improving the alternatives that
references to fundamental rights and the role and efficacy already exist, or even creating products that set new
of competition law remedies. We structure this note as standards. In this sense, competition is a “discovery
follows: Section I reviews the rationales for regulation and process.”12 The coordination of autonomous actors
the conventional scope of competition laws. This section driven by their self-interest typically leads to efficient
may seem basic, but it explains why data exploitation outcomes. This resembles the ordoliberal foundations
is unlikely to be a good target for competition law of competition law that builds on the freedom of choice
enforcement. Section II summarizes and analyzes as an individual expression of economic preferences.13
the recent German antitrust case against Facebook. Yet negative externalities, such as pollution, lead to an
excessive production of goods. To equal the private cost
of pollution to its social cost, regulatory intervention is
needed. Poor information also requires legal intervention
8 J. E. Stiglitz, Economics of the Public Sector, 3rd Revised edition (W. W. Norton &
Company, 2000).
as it can lead people to enter into deals that are not
beneficial for them.14 Furthermore, self-control problems
9 For instance, there is consensus that food quality has not improved throughout the years
despite competition. S. M. Krebs-Smith, J. Reedy, and C. Bosire, Healthfulness of the U.S.
lead to similar outcomes.15
Food Supply: Little Improvement Despite Decades of Dietary Guidance, American Journal
of Preventive Medicine 38, No. 5 (May 1, 2010): 472–77, https://doi.org/10.1016/j.
amepre.2010.01.016. If most consumers prefer tasty Cheetos over a healthier alternative,
the market will produce the less healthy option to give consumers what they want. This is,
of course, an oversimplification since consumers are heterogeneous and there is enough
demand for healthy food to secure the existence of such a market. Nonetheless, obesity
may well be a market failure, and while some regulatory strategies have intended to make 11
See, e.g., W. Kip Viscusi, J. E. Harrington, D. E. M. Vernon, Economics of Regulation and
the “healthy” or “nutritional quality” attribute more salient for consumers, and thus Antitrust, 4th edition (The MIT Press, 2005), 377; Stiglitz, supra note 8, 63.
improve their ability to make decisions more consistent with their long-term goals, this is
not a problem that is properly addressed by competition laws. Unfortunately, regulatory 12 Snow, supra note 7, 9–23.
simplification strategies have shown that complex problems are unlikely to be solved easily. 13 W. Eucken, Die Grundlagen der Nationalökonomie (1947, 9th edition, Springer-Verlag,
See, O. Vásquez Duque, The Non-Trivial Regulation of Nutrition Labels: An Exploratory 1989), 275, 313.
Analysis of the Chilean Experience, SSRN Scholarly Paper (Social Science Research
Network, February 8, 2018), https://papers.ssrn.com/abstract=3120696. 14 R. Korobkin, Bounded Rationality, Standard Form Contracts, and Unconscionability,
The University of Chicago Law Review 70, No. 4 (2003): 1203–95.
10 See, e.g., P. A. Norberg, D. R. Horne, and D. A. Horne, The Privacy Paradox: Personal
Information Disclosure Intentions versus Behaviors, Journal of Consumer Affairs 15 See, e.g., T. O’Donoghue and M. Rabin, Doing It Now or Later, The American
41, No. 1 (2007): 100–26, https://doi.org/10.1111/j.1745-6606.2006.00070.x. Economic Review 89, No. 1 (March 1, 1999): 103–24; T. O’Donoghue and M. Rabin,
S. Kokolakis, Privacy attitudes and privacy behaviour: A review of current research on the Present Bias: Lessons Learned and to Be Learned, The American Economic Review
privacy paradox phenomenon Computers & Security 64 (2017): 122–34; L. Brandimarte 105, No. 5 (2015): 273–79, D. Laibson, Golden Eggs and Hyperbolic Discounting,
and A. Acquisti, The Economics of Privacy, in The Oxford Handbook of the Digital The Quarterly Journal of Economics 112, No. 2 (May 1, 1997): 443–78, https://doi.
Economy, M. Peitz and J. Waldfogel, eds. (Oxford University Press, 2012), 1, 14. org/10.1162/003355397555253.
76 Concurrences N° 1-2021 I Law & Economics I Jörg Hoffmann, Omar Vásquez Duque I Can data exploitation be properly addressed by competition law?6. Monopoly power produces higher prices or lower firms that exploit consumers’ imperfect information,
constitutes a violation of the publisher's rights and may be punished by up to 3 years imprisonment and up to a € 300 000 fine (Art. L. 335-2 Code de la Propriété Intellectuelle). Personal use of this document is authorised within the limits of Art. L 122-5 Code de la Propriété Intellectuelle and DRM protection.
quality than what a consumer would see in a competitive bounded rationality, and self-control survive in a
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L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
market. Monopoly power is, however, more than market competitive equilibrium.21 The solutions to these market
power.16 The latter is pervasive. In fact, most producers failures are difficult to design and implement. Often, they
of differentiated products enjoy some degree of market require industry-specific knowledge and the formulation
power. Monopoly power, in contrast, is the ability of a of tailored legal mandates to protect a heterogeneous
firm to impair competition, turning conduct that would pool of consumers.
be irrational for firms in a relatively competitive market—
such as excluding competitors by charging prices below
cost—into rational business strategies.17 Usually, under 2. A basic model of market
a legal analysis, the starting point for an inference of
monopoly power consists of high barriers to entry plus failure stemming from
high market shares. Monopolists benefit at the expense imperfect information
of consumers and society as a whole, since monopoly
power comes with static and dynamic inefficiencies. 9. Let’s denote the demand for a product as d. Consumer
i has two alternatives: (i) product “good” and (ii) product
7. Competition laws prevent the unlawful acquisition “not-so-good.” Each product has several attributes: ag1,a
and/or exercise of monopoly power by prohibiting …agn and ansg1, ansg2…ansgn. Naturally, each product has
g2
anticompetitive agreements and joint ventures, a price: Pg and pnsg, respectively. A rational and well-
mergers that substantially lessen competition, as well
informed consumer will assign a value to each attribute,
as the exclusion of reasonably (or equally) efficient
which would yield the benefit of each product: vg and vnsg.
competitors. The direct exploitation of a monopoly
against consumers is a matter of debate, yet legislation in Such a consumer, as long as she does not face budget or
several jurisdictions regards excessive or abusive pricing other types of constraints, will prefer the “good” product
as an antitrust offense.18 Antitrust remedies put an end to if: vig – pg > vinsg – pnsg. Choosing the “not-so-good”
the abusive conduct or forbid the creation of monopoly product may be rational but this depends on consumers’
power ex ante, in addition they serve as deterrents.19 preferences as well as their budget.
If there are high entry barriers in a market and only a
handful of competitors, merger control should forbid 10. Let’s assume now that consumers are not well informed
the acquisition of actual or potential competitors. If two or that for whatever reason (e.g., it is costly to assess each
competing firms fix the prices of their goods or allocate option and compare with competing alternatives) they
exclusive territories to each other, the firms will have to overlook an important product attribute and believe the
pay high fines and in many countries the managers who price they pay is lower than it really is (the perceived price
were involved in the offense would have to serve some is denoted as pg thus pg> pg). For instance, when choosing
time behind bars. a credit card, consumers may neglect the interest rates
and focus mostly, or exclusively, on the annual fees.22 For
8. But what should competition law do if poor regulation some, usually sophisticated, this would make sense since
leads firms to use dirty energy sources in order to charge the probability of missing a payment might be very low.
prices as low as possible? Or when consumers are ill- So, the more important case is that of those consumers
informed, which induces sellers to supply services or who face a non-negligible probability of missing a
goods that appear to be more convenient than they really payment and yet overlook the high-interest rates.
are? This piece focuses on the latter case. Competition
laws protect the free functioning of markets. Many 11. Banks may offer different combinations of fees.
times, free and competitive markets lead to undesirable In fact, if the market is competitive, banks may choose
results.20 When consumer demand is a function of poor any combination of c and f that covers their costs.
information or behavioral biases, competitive pressures When consumers consider both c and f, the market will
tend to lead sellers to exploit consumers’ misperceptions provide levels of both that reflect the actual preferences
and biases. Actually, under reasonable assumptions, only of consumers. Yet if consumers overlook the interest fee,
the banks will offer contracts with very low or even zero
salient prices (f) and high non-salient prices (c). Since
consumers base their decisions mainly or exclusively on
16 D. W. Carlton and J. M. Perloff, Modern Industrial Organization, 4th Global Edition
(Pearson/Addison Wesley, 2015), 117, 687.
f, competition is distorted. This is because competition
occurs only with respect to f, leaving room for sellers to
17 E. Elhauge and D. Geradin, Global Antitrust Law and Economics, 3rd edition (Founda-
tion Press, 2018), 320–21.
backload the real price of their goods to c. Furthermore,
since c is non-salient, the banks may increase the total
18 Ibid. chap. 3.
19 See, e.g., A. Douglas Melamed, Afterword: The Purposes of Antitrust Remedies, Antitrust
Law Journal 76, No. 1 (2009): 359–68; W. P. J. Wils, Relationship between Public
Antitrust Enforcement and Private Actions for Damages, World Competition 32, No. 1
(2009): 3–26. 21 Bar-Gill, supra note 5, chap. 1.
20 As Shiller and Akerlof note: “Free markets are products of peace and freedom, flourishing 22 We base this example on those provided by Oren Bar-Gill in a consumer contracts context.
in stable times when people do not live in fear. But the same profit motive that produced those See, O. Bar-Gill, Consumer Transactions, in The Oxford Handbook of Behavioral Economics
boxes that opened and gave us something we wanted has also produced slot machines with and the Law, E. Zamir and D. Teichman, eds. (Oxford University Press, 2014), 465–90,
an addictive turn of the wheel that takes your money for the privilege.”Akerlof and Shiller, http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199945474.001.0001/
supra note 5, p ix-x. oxfordhb-9780199945474-e-018.
Concurrences N° 1-2021 I Law & Economics I Jörg Hoffmann, Omar Vásquez Duque I Can data exploitation be properly addressed by competition law? 77cost to non-competitive levels.23 This finding is far from 14. To begin with, are these competition law cases?
constitutes a violation of the publisher's rights and may be punished by up to 3 years imprisonment and up to a € 300 000 fine (Art. L. 335-2 Code de la Propriété Intellectuelle). Personal use of this document is authorised within the limits of Art. L 122-5 Code de la Propriété Intellectuelle and DRM protection.
being new. From a neoclassical perspective, Carlton and The main source of market power that allows sellers
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L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
Perloff point out that: “The full-information, competitive to adopt intrusive privacy policies is an informational
price equilibrium is not an equilibrium when consumers issue (and probably inertia as well). The market may
have limited information about price and positive search have several suppliers, which might offer homogeneous
costs.”24 Why? Imagine each individual faces a search products at the eyes of consumers (e.g., email providers,
cost of s, a competitive price is pc. Buyers suspect they even cell-phone networks). If there were a monopolist,
can find pc somewhere with a low probability but, as entry would not discipline the privacy attribute since
indicated, finding such a price entails a search cost of s. competition would occur only over the attributes that
Then, each seller could increase her price as long as the consumers care about (which is revealed by consumers’
new price pn is lower than pc + s. As search costs increase, actual behavior, not by their stated preferences).
sellers may rationally raise their prices even reaching the Furthermore, what competition law remedy may fix this
monopoly price.25 problem? Obligations to disclose the average hidden
costs? Generic mandates to offer a fair contract, more
12. There are different possible outcomes when some options, or a general ban of abusive terms?
consumers are well informed.26 If many consumers are
informed, then firms may charge the competitive price.27 15. Some have suggested considering data exploitation
But this depends on a crucial trade-off: charging higher as an abusive price. Yet in excessive pricing cases, the
prices entails losing the demand of informed consumers plaintiff bases her position on a competitive benchmark.
and keeping the demand of uninformed consumers for If the goods or services in the benchmark market are
whom the price difference is lower than their search costs, similar to the one that is the object of the trial, then direct
assuming they have the expectation of finding a lower price regulation overcomes an important informational
price at a cost of s. In repeated transactions, inertia poses challenge. In fact, the existence of a competitive
another search cost.28 benchmark stems from the fact that competition does
discipline net prices in the benchmark market. What is
13. The case of privacy is similar to the credit cards the benchmark when sellers exploit consumers’ lack of
example from above. Privacy is a product attribute. information, and/or their imperfect rationality and their
For simplicity, let’s assume digital products have only inertia and this is a generalized practice (an equilibrium)?
three attributes: price (p), connectivity (b), and privacy This point is developed in further detail in paragraph 26.
intrusion (h). If consumers do not ponder the privacy
attribute h in their decision-making, platforms will
exploit such attributes, extracting all the value they can,
which allows them to subsidize the nominal price of the II. The privacy paradox
and the German
product. While the real price consumers pay is p + h,
poorly informed consumers believe the price they pay is
only p (or more optimistically a value lower than p + h
but not close enough to demand a different alternative).
Sellers will compete offering low perceived prices (p) and Facebook case
connectivity (b) that satisfies their customers. This is the 16. Germany has been a pioneer jurisdiction in enforcing
competitive benchmark we believe should be applicable antitrust laws against the alleged privacy-intrusive
to the Facebook case. What can we do to solve problems conduct of digital platforms. Most recently, in the
like these in which market prices and/or quality are not Facebook judgment, the German Federal Supreme
disciplined by demand forces? Court backed the Federal Cartels Office decision29 that
considered Facebook’s current data policy as an abuse of
dominance under German Competition Law.30 The court
preliminary held that Facebook’s terms and conditions
23 S. P. Anderson and R. Renault, Pricing, Product Diversity, and Search Costs: A Bertrand-
Chamberlin-Diamond Model, The RAND Journal of Economics 30, No. 4 (1999): illegally enabled it to use aggregated data from its
719–35. network and combine it with other “Off-Facebook-data”
24 D. W. Carlton and J. M. Perloff, Modern Industrial Organization (Pearson/Addison Wesley, from other social networks that belong to Facebook
2005), 478. (e.g., WhatsApp and Instagram), as well as third-party
25 Based on Carlton and Perloff, Modern Industrial Organization, 478. Given the length websites and apps to provide user-centric services and
of this piece we may not develop the interesting differences regarding the rationales better sell the attention of consumers to advertisers.
and strategies for regulating traditional and behavioral market failures. Yet, as Doug
Melamed told us, this difference is crucial. For instance, privacy costs may be overlooked
This “imposed personalized experience,”31 the court
because of hyperbolic discounting. If this were the case, traditional tools to overcome outlined, may lead consumers to succumb to intrusive
informational failures would be ineffective, practices by consciously or subconsciously giving up
26 Salop and Stiglitz’s article is an important reference in this respect. They also summarize their sovereignty over their privacy or their right to
the previous literature. See S. Salop and J. Stiglitz, Bargains and Ripoffs: A Model of
Monopolistically Competitive Price Dispersion, The Review of Economic Studies 44,
No. 3 (1977): 493–510, https://doi.org/10.2307/2296903.
27 Carlton and Perloff. p. 483. This is based on P. A Diamond, A Model of Price 29 BKartA WuW 2019, 277 = BeckRS 2019, 4895.
Adjustment, Journal of Economic Theory 3, No. 2 (June 1971): 156–68, https://doi.
org/10.1016/0022-0531(71)90013-5. 30 It has to be noted that it is still a summary proceeding and thus is not only a preliminary
ruling, it also has a lower standard of proof.
28 See, e.g., A. MacKay and M. Remer, Consumer Inertia and Market Power (April 29,
2019), available at SSRN: http://dx.doi.org/10.2139/ssrn.3380390. 31 BGH GRUR 2020, 1318 para. 58 – Facebook.
78 Concurrences N° 1-2021 I Law & Economics I Jörg Hoffmann, Omar Vásquez Duque I Can data exploitation be properly addressed by competition law?informational self-determination. Such conduct may 19. According to Article 19(2) Nr. 2 GWB, an abuse of
constitutes a violation of the publisher's rights and may be punished by up to 3 years imprisonment and up to a € 300 000 fine (Art. L. 335-2 Code de la Propriété Intellectuelle). Personal use of this document is authorised within the limits of Art. L 122-5 Code de la Propriété Intellectuelle and DRM protection.
further imperil competition in the social communication a dominant position exists “if a dominant undertaking
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L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
and the advertisement selling markets. Notably, the court demands (. . .) business terms which differ from those which
developed a new theory of harm that deviated from the would very likely arise if effective competition existed; in
Federal Cartel Office’s reasoning in two ways. First the this context, particularly the conduct of undertakings in
court abandoned the excessive pricing rationale that was comparable markets where effective competition exists
the lynchpin of the Federal Cartel Office’s argumentation. shall be taken into account.” The offense thus has to be
Second, the court based its reasoning on data-specific a consequence of the firm’s market power (causality
exclusionary abuse considerations.32 stricto sensu). The preceding point means that consumers
would benefit from higher privacy protection standards
if the market was competitive. Yet, the Federal Court
1. Breach of informational of Justice quite extraordinarily attenuated the strict
causality requirement by referring to the general clause of
self-determination as an abuse Article 19(1) GWB,37 outlining that it sufficed that consumer
of dominance harm could only arise in the case of market-dominant
companies. This was despite the fact that it was clear in the
17. The court reasoned that Facebook’s market dominance discussion that data-specific abuses were possible for any
and the pivotal role of social communication services business, including non-dominant firms.38 Accordingly,
in daily lives leave consumers without any real choice the court analyzed the case under a weaker standard of
but accepting Facebook’s terms and conditions in their “as-if competition” (normative causality). This implied
entirety. The fact that consumers give up their data and the assessment of whether the user preferences could be
the imposition of data-driven services—the personalized better realized in a hypothetical competitive market (i.e.,
user experience—were tantamount to exploitation. whether in a hypothetical competitive market rational
Consumers lose their possibility to discipline the market market actors would opt for a less privacy intrusive option
and are left without any choice. Here the court adhered than the one Facebook was offering).39
to the concept of “consumer choice” of Averitt, Lande
and Nihoul as an alternative to the traditional focus of 20. The court found such evidence in a market study
competition law on price effects.33 conducted by the Federal Cartel Office. That study
merely asked people whether they would choose less
18. According to the court, the consumers’ fundamental privacy-intrusive services if such options were provided
right of informational self-determination needs to be by Facebook. Not surprisingly, 46% of Facebook-users
considered in Article 19(1) German Antitrust Code answered that they would switch to a less intrusive
(GWB).34 This fundamental right entails a consumer option. Furthermore, 38.5% of Facebook users even
right to—at least—freely determine what information declared that they would pay for a “data light” version
is provided to a third party. The forced personalized of Facebook.40 As it should be evident, the court justified
experience provided by Facebook and the lack of its decision on a survey concerning consumers’ stated
alternatives available violated such power. The court preferences. This is despite the fact that there are several
rebuffed claimed justifications for Facebook’s data empirical studies demonstrating the divide between
business model due to specific exceptions and limitations people’s stated and revealed preferences regarding their
in the General Data Protection Regulation (GDPR),35 privacy. As we explain in the next section, people tend
and reasoned it was obliged to put an end to Facebook’s to report that they care about the personal information
exploitative data practice.36 they share. However, in reality people undertake little to
protect their data, and act as if they did not care much
(or not care at all) about it.41 This conundrum is called
“the privacy paradox.” A possible explanation is the
naïve trust on survey responses about sensitive topics
that are subject to a social-desirability bias.
32 Ibid., para. 64.
37 BGH GRUR 2020, 1318 para. 81 – Facebook.
33 R. H. Lande and N. W. Averitt, Using the “Consumer Choice” Approach to Antitrust
Law, Antitrust Law Journal 74, No. 1 (2007): 175–264; P. Nihoul in Choice: A New 38 Ibid.
Standard for Competition Law Analysis? P. Nihoul, N. Charbit, and E. Ramundo, eds.
(Concurrences, 2016), 9. 39 Ibid. The court explicitly outlined that as there never has been proper competition
in the social communication market it cannot be answered what a counterfactual was.
34 BGH GRUR 2020, 1318, para. 102ff. On the relevance of fundamental rights even This fact however, cannot serve as an excuse for Facebook.” In order to meet the causality
between private actors within Article 19 GWB, see the German Highest Supreme Court requirement it has to suffice “that there are identifiable user preferences of economically
in the Pechstein case, BGHZ 210, 292 Rn. 57 – Pechstein and the Highest Constitutional reasonable consumers. Accordingly, consumers need to have a willingness to make use of
Court in Stadionverbot, BVerfGE 147, 267 Rn. 41 – Stadionverbot. other conditions of use. Such willingness must be based on actual evidence.
35 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 40 Cf. Question 11, Amtsakte, 682. Cf. BGH GRUR 2020, 1318, para. 85.
2016 on the protection of natural persons with regard to the processing of personal data.
The right of self-determination is still applicable in Article 19 GWB and not directly 41 See, S. Barth and M. D. T. de Jong, The Privacy Paradox – Investigating Discrepancies
circumscribed by the GDPR. As privacy is not considered an absolute right, there are between Expressed Privacy Concerns and Actual Online Behavior – A Systematic
certain exceptions and limitations enshrined in the GDPR. Literature Review, Telematics and Informatics 34, No. 7 (November 2017): 1038–58,
https://doi.org/10.1016/j.tele.2017.04.013; D. J. Solove, A Taxonomy of Privacy,
36 i.e., the status positivus of such rights. See on the scope of the right of informational University of Pennsylvania Law Review 154, No. 3 (January 2006): 477–560; A. Acquisti,
self-determination in Germany, Highest Constitutional Court, BVerfG, WRP 2020, 39 Nudging Privacy: The Behavioral Economics of Personal Information, IEEE Security and
para. 87 – Recht auf Vergessen I. Cf. BGH GRUR 2020, 1318 para. 105 – Facebook. Privacy 7, No. 6 (2009): 82–85.
Concurrences N° 1-2021 I Law & Economics I Jörg Hoffmann, Omar Vásquez Duque I Can data exploitation be properly addressed by competition law? 792. Excessive aggregation of data practice has found such scenarios implausible in several
constitutes a violation of the publisher's rights and may be punished by up to 3 years imprisonment and up to a € 300 000 fine (Art. L. 335-2 Code de la Propriété Intellectuelle). Personal use of this document is authorised within the limits of Art. L 122-5 Code de la Propriété Intellectuelle and DRM protection.
cases, and revolved back to the traditional error‑cost
as a barrier to entry in the social
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L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
framework. In the Facebook/WhatsApp merger, for
networks and advertising markets instance, the EC cleared the merger and stated that “the
consumer communications sector is a recent and fast-
21. As mentioned above, the court also developed an growing sector which is characterised by frequent market
exclusionary theory of harm. According to the court, the entry and short innovation cycles (. . .). [I]n this market
excessive aggregation of data and the gained insights on high market shares are not necessarily indicative of market
user experiences may ultimately strengthen Facebook’s power and, therefore, of lasting damage to competition.”47
market power on both sides of the platform. Increased Recent studies, however, have claimed that the predicted
user experience may directly boost the attention of market disruptions that favored the hands-off approach
users in the social network market, which may give have not occurred.48
Facebook more—and particularly more accurate
and comprehensive—information about their users.
This allows Facebook to sell an unrivaled product to
advertisers.42 Due to strong indirect network effects
III. Assessment
on both sides of the market, Facebook’s personalized
services are likely to create high entry barriers. In fact, of the German
Facebook case
the court, in a similar way to the reasoning of the
General Court of the Microsoft case,43 reasoned that the
aggregation of data from multiple sources may position
Facebook as an incontestable market actor.44 23. A great motivation of the Supreme Court’s judgment
is to provide more choices for consumers. The court
22. Accordingly, for the court the object of proof was the seems to believe that there is an intrinsic value in having
potential negative effects on competition given Facebook’s more choices and that free competition is a silver bullet.
specific responsibility as a dominant firm.45 This is quite By assuming these two points, the court overlooks what
extraordinary as such data-specific foreclosure theory experts have called “the privacy paradox” as well as
of harm has already been subject to scrutiny in the the very basic taxonomy of market failures presented
European Commissions’ merger control practice. In fact, in Section I. From a legal perspective, these issues
the European Commission (EC) has assessed whether the influenced the lower causality threshold adopted by
concentration of control over valuable and non-replicable the court. Actually, the Federal Supreme Court quite
data resources may create a significant impediment bluntly lowered the causality threshold on the grounds
for competition by either strengthening market power of the justified expectation that rational consumers may
or leveraging their data advantages to other markets respond to product diversification (...) if competition
and thus lead to foreclosure effects.46 The EC’s merger was in place.49 This also explains the lower standard of
proof applied in such case. Yet—and this is what the
court oversees—its counterfactual is based on several
42 BGH GRUR 2020, 1318 para. 94 – Facebook. The court explicitly states that the more unrealistic normative assumptions that lead to inaccurate
data Facebook gets, the more accurate the predictability of user behavior is. This does predictions.
not only allow Facebook to more accurately develop tailored services and personalize
future or other business strategies and technologies, it also allows Facebook to more
accurately predict the users’ behavior. The more data in terms of quantity and quality 24. A critical piece of evidence for the court was the
the better Facebooks’ data analytics. As the number of users is already very large, high market study conducted by the Federal Cartel Office,
direct network effects cause barriers to entry for both current and potential competitors
as they can hardly compete with the offered services and the strong network. In addition
which showed that people stated that they valued
to the barrier to entry caused by direct network effects, there is also the risk of market their privacy and that many were willing to pay for a
foreclosure on the other side of the platform, i.e. advertising market. Particularly the less intrusive Facebook version. Many studies have
advertising market is however required to amortize the costs from the other side of the
platform, i.e. the social communication service market. documented, however, that in reality people undertake
little to protect their data, despite the fact that they report
43 Case T-201/04 Microsoft [2007] ECR II 3602 5 CMLR 11 para. 631.
caring about their privacy.50 This so-called “privacy
44 Cf. J. Drexl, Intellectual Property and Sources of Market Power, in Intellectual Property,
Market Power and the Public Interest, I. Govaere and H. Ullrich, eds. (PIE Peter Lang, 2008),
13; A. Heinemann, The Contestability of IP-Protected Markets, in Research Handbook on
Intellectual Property and Competition Law, J. Drexl, ed. (Edward Elgar Publishing 2008), 54–
79. See Joint Committee of the European Supervisory Authority, Joint Committee Discussion 47
Facebook/WhatsApp, supra note 46, para. 99. See also Judgment of the General Court,
Paper on the Use of Big Data by Financial Institutions (2016) JC 2016 86, 6; J. Hoffmann, 11 December 2013, Cisco Systems and Messagenet v. Commission, Case T-79/12,
Safeguarding Innovation Through Data Governance Regulation: The Case of Digital EU:T:2013:635.
Payment Services (2020), Max Planck Institute for Innovation and Competition Research Paper
No. 20-08, 21–26. For a dissenting opinion see A. Lambrecht and C. E. Tucker, Can big data 48 See, J. Crémer, Y. A. de Montjoye, and H. Schweitzer, Competition policy for the digital
protect a firm from competition?, Competition Policy International (2017). era (2019), 49–54; J. Furman, Unlocking digital competition, Report of the Digital
Competition Expert Panel (2019), 4; Report of the German Competition Commission 4.0,
45 GRUR 2020, 1318 Rn. 81ff. – Facebook. Ein neuer Wettbewerbsrahmen für die Digitalwirtschaft (2019), paras. 9–11
46 See for example Commission decision of 6 September 2018, Case M.8788 – Apple/Shazam, 49 BGH GRUR 2020, 1318 para. 81 – Facebook.
C(2018) 5748 final; Commission decision of 6 December 2016, Case M.8124 – Microsoft/
LinkedIn, C(2016) 8404 final; Commission decision of 3 October 2014, Case M.7217 50 See, S. Barth and M. D. T. de Jong, The Privacy Paradox – Investigating Discrepancies
– Facebook/WhatsApp, C(2014) 7239 final; Commission decision of 4 September between Expressed Privacy Concerns and Actual Online Behavior – A Systematic
2012, Case M.6314 – Telefónica UK/Vodafone, C(2012) 6063 final. Cf. J. Hoffmann and Literature Review, Telematics and Informatics 34, No. 7 (November 2017): 1038–58,
G. Johannsen, EU-Merger Control and Big Data: On Data-specific Theories of Harm and https://doi.org/10.1016/j.tele.2017.04.013; D. J. Solove, A Taxonomy of Privacy,
Remedies (2019), Max Planck Institute for Innovation and Competition Research Paper University of Pennsylvania Law Review 154, No. 3 (January 2006): 477–560; Acquisti,
No. 19-05, 1, 9–29. supra note 41, 82–85.
80 Concurrences N° 1-2021 I Law & Economics I Jörg Hoffmann, Omar Vásquez Duque I Can data exploitation be properly addressed by competition law?paradox” casts doubt on what is the actual consumer 26. It is important to bear in mind that in excessive
constitutes a violation of the publisher's rights and may be punished by up to 3 years imprisonment and up to a € 300 000 fine (Art. L. 335-2 Code de la Propriété Intellectuelle). Personal use of this document is authorised within the limits of Art. L 122-5 Code de la Propriété Intellectuelle and DRM protection.
preference that the court should have regarded as the real pricing cases the plaintiff has to refer to one or several
Ce document est protégé au titre du droit d'auteur par les conventions internationales en vigueur et le Code de la propriété intellectuelle du 1er juillet 1992. Toute utilisation non autorisée constitue une contrefaçon, délit pénalement sanctionné jusqu'à 3 ans d'emprisonnement et 300 000 € d'amende (art.
L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
one—aiming to guarantee people’s self-determination, benchmarks.53 For instance, if someone for whatever
which sounds like an oxymoron. People say many reason enjoys a monopoly in funerary services in a small
things, but only a few buy fair-trade products, donate to town, which allows her to charge higher prices than
charities, and prefer electric or hybrid cars (having the those charged in places where there is competition, the
chance to do so). We believe there is a critical experience plaintiff may gather that relevant pricing information
that proves that our argument applies to people’s and argue that the benchmark provides a reasonable
privacy: The evolution of DuckDuckGo’s market comparison to set a fair price.54 While the best remedy
share. DuckDuckGo is a search engine that offers high for the medium run may be to introduce competition in
privacy standards. As the plot below shows,51 even after the market, issuing a behavioral remedy requiring the
being present in the choice screen that resulted from the firm to charge prices above cost and below the monopoly
Android case, DuckDuckGo’s market share has not risen price in the meantime would do no harm. This exercise
above 1% despite the fact that it is a good alternative to is possible because the source of market power is a
more intrusive environments and that it actively displays legal monopoly. Competition works well in this type
its commitment with people’s privacy. of market, where there are no significant informational
failures and no externalities. But markets fail for causes
Market Shares Europe 2018 to 2020 other than the lack of competition, and when that is
the case, competition law usually lacks the institutional
competence and erga omnes effects to improve market
Marcket Share in %
outcomes. The recent response of Google in Germany,
by which it provides a menu of options to its users, may
be interpreted as a counterargument to our position.
Of course, no one denies that the enforcement of law may
have a deterrent effect. However, the services provided
by Google are multidimensional and complex. A court
may well approve the conditions offered by a firm in
Year a potential settlement, or enforcers might interpret a
change of conduct as a law-abiding effort. However,
courts and general enforcers usually lack the technical
25. One of the core rationales of informational self- knowledge to assess the impact of legal remedies. If a
determination is to let consumers decide. Yet people’s firm operating in a platform market loses a source
lack of reaction towards the status quo is what of profit, it may well (and probably would) try to
has allowed many firms to exploit people’s privacy. compensate for the loss in the other side of the market
Regulation for competition (e.g., simplification, standard (e.g., with higher prices for advertisers, a part of which
setting, interoperability) may be a reasonable alternative. would be passed on to their consumers) or in a related
But thoughtful efforts to change the status quo for the market. What is the net effect of the intervention? This is
better need good information about the causes of the a reason why a sound prediction and assessment of the
problem and possible alternatives, as well as general remedies is critical. If a data sharing remedy was offered,
effects. For instance, why has not DuckDuckGo increased it would be hard to predict whether merely sharing
its market share? Is it because the choice screen is poorly information would effectively restore competition in
designed? Because advertising new search engines is too the market. Actually, dominance may stem from critical
difficult/costly? Because for some reason the dominant infrastructure—i.e. data scientists, other data sources,
firm has an advantage that is not replicable by the machine learning models, etc. This knowledge however
entrants, which makes it unfeasible for them to provide is the key competitive factor in the data related theory of
a product that is as good as the incumbent’s? If sound harm that the Supreme Court addressed.
answers are found, how can the solution be implemented
obliging all market actors and not only the defendant?
This may bring back the discussion on paternalistic
market regulation, which has already been envisioned in
the Digital Markets and Digital Services Acts.52
53 M. de la Mano, R. Nazzini, and H. Zenger, Article 102, in The EU Law of Competition, J.
51 This is based on O. Vásquez Duque, Forced Choice vs. Inertia? An Exploratory Analysis of Faull and A. Nikpay, eds., 3rd ed. (Oxford University Press, 2014), 329–538; O. Vásquez
Choice Screens Applied in the European Microsoft Antitrust Case, draft on file with author. Duque, Excessive Pricing: A View from Chile, The University of Oxford Centre for
Competition Law and Policy Working Paper CCLP L 41 (April 8, 2015), available at:
52 Cf. Proposal for a Regulation on a Single Market For Digital Services (Digital Services https://dx.doi.org/10.2139/ssrn.2591931.
Act) COM/2020/825 final; Proposal for a Regulation on contestable and fair markets in
the digital sector (Digital Markets Act), COM/2020/842 final. 54 Corinne Bodson v. SA Pompes funèbres des régions libérées, 1998 ECR 2479 (1998).
Concurrences N° 1-2021 I Law & Economics I Jörg Hoffmann, Omar Vásquez Duque I Can data exploitation be properly addressed by competition law? 81IV. Conclusion privacy-related market failures that stem from a lack of
constitutes a violation of the publisher's rights and may be punished by up to 3 years imprisonment and up to a € 300 000 fine (Art. L. 335-2 Code de la Propriété Intellectuelle). Personal use of this document is authorised within the limits of Art. L 122-5 Code de la Propriété Intellectuelle and DRM protection.
consumer engagement and informational deficiencies.55
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L. 335-2 CPI). L’utilisation personnelle est strictement autorisée dans les limites de l’article L. 122 5 CPI et des mesures techniques de protection pouvant accompagner ce document. This document is protected by copyright laws and international copyright treaties. Non-authorised use of this document
Horizontal regulation has erga omnes effects and
27. Competition law is not a silver bullet. Enhancing regulators tend to have market-specific knowledge, which
privacy protection by means of enforcing competition is critical to properly regulate a complex set of related but
law has already been claimed as a political stance that distinct markets. Competition laws may have deterrence
goes beyond traditional antitrust reasoning. Of course, effects. Yet, the dependency on market dominance that
there is nothing wrong in thinking outside of the box, has to be assessed by competition authorities may create
but for regulation, either direct or indirect, to work considerable legal uncertainty, including the risk of
well, the regulator has to count on good information opinions based on naive accounts of people’s behavior and
and issue general mandates. We argue that privacy- poor empirical evidence. This can be seen in the German
related exploitative abuses can hardly be dealt with by Facebook case, especially when assessing the causal
competition remedies. As consumers usually act as if they relationship between Facebook’s dominant position and
did not value their privacy, market responses that neglect its ability to provide tailored services to its users.
the privacy paradox are likely to fail to improve the
current status quo. Actually, because privacy exploitation 29. Notwithstanding the above, by defining a new theory
is better explained by informational failures, there is of harm that builds on exclusionary abuse considerations,
no legal causality between the defendant’s dominance the German Supreme Court has paved the way for a more
and intrusive privacy practices. Furthermore, since a coherent and dogmatically well-aligned competition law
competitive market is unlikely to police the privacy solution to tackle the data exploitation. This goes in line
attribute, it is impossible to see a benchmark in the real with the current legislative platform regulation endeavors
world. The German Supreme Court built its reasoning on a European and German level. Thereby, the German
on a hypothetical ideal market in which consumers value Supreme Court decision certainly backs these current
having the chance of choosing a less intrusive social legislative actions and pioneers in strengthening the
network. Nevertheless, the privacy paradox is such contestability of digital markets. More importantly,
because people’s stated preferences are in contradiction however, the Supreme Court sets the scene for a new
with their actual behavior. Actively engaging consumers theory of harm that overcomes existing deficiencies in
may indeed be the right way forward, and regulation data-specific exploitative abuse considerations. Such
may make competition more viable (for instance, by theory of harm may also have to be looked at in merger
mandating the interoperability of networks and assuring control cases. It remains to be seen how the court will
a privacy protection floor). eventually decide in its main proceedings and how the
Digital Services and Digital Markets Acts address the
28. Despite being critical of the German Facebook case, data specific theory of harm. Either way, the German
we do think that privacy protection is important. Yet the Facebook case will be at the forefront of the debate on
determination of the proper scope of people’s privacy the limits of competition law and will be important to
and informational self-determination should be left to shed light on the legislative procedure of the European
horizontal regulation like ad hoc privacy instruments. and German digital laws, which are likely to affect other
Privacy regulators are better equipped to address the jurisdictions worldwide. n
55 Cf. A. Fletcher, Disclosure as a tool for enhancing consumer engagement and competition,
Behavioural Public Policy (Cambridge University Press, 2019), 4.
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