Big Data is the fuel of the digital economy. It is the large amounts of different types of data produced at high speed from multiple sources, requiring new and more powerful processors and algorithms to process and to analyse.
Big Data can enhance economic growth and be helpful in various sectors. For example, by making information transparent, or by helping to create new services and products or to better tailor existing ones.
However, Big Data also creates concerns. When it constitutes personal information, i.e. when it can personally identify an individual or single them out as an individual, it can be used as a currency, becoming the quid pro quo for online offerings which are presented or perceived as being ‘free.’ Moreover, even though we have not analysed the impact of free services on the digital economy yet, we have already understood that power can be achieved through the control over great volumes of data on service users. Refusal of access to personal information and opaque or misleading privacy policies can result in the abuse of a dominant position and in harm to consumer. This may justify a new concept of consumer harm for competition enforcement in digital markets.
Big Data touches on areas that are of interest for data and consumer protection, as well as for competition law. Competition regulation aims to achieve an efficient allocation of marketing resources and ensure consumer welfare. Consumer protection rules’ goal is to prevent the use of misleading claims about products and services. Data Protection regulates how collected data can be used. In the end, the three areas of law share common goals: the promotion of growth and innovation and the enhancement of the welfare of individual consumers.
A new investigation on Big Data
At the end of May the Italian Competition (& Consumer Protection) Authority joined the team of enforcers which has opened their own investigation on Big Data. However, the Italian investigation will look at the issue with new eyes as the competition regulator has joined forces with the Data Protection Authority and the Communications Authority to carry out the exercise.
The three Italian regulators will assess if and when access to Big Data might constitute an entry barrier or if Big Data can facilitate the adoption of anticompetitive behaviours that could possibly hinder development and technological progress. To get their answer, the three authorities will analyse the impact that online platforms and the associated algorithms have on the competitive dynamics of digital markets, on data protection, on the ability of consumers to choose, and on the promotion of information pluralism. They also aim to verify the effect that information aggregation and that access to Big Data obtained through non negotiated forms of user profiling have on the digital ecosystem [For more information see the press release here].
It seems a widely accepted fact that to respond to the digital challenge, enforcers need to come together. Last year, the European Data Protection Supervisor (EDPS) proposed to set up the Digital Clearing House (DCH) to bring together, in a voluntary network, privacy, competition and consumer protection authorities willing to share information and to discuss how to better enforce the rules [here].
The DCH had its first meeting just the day before the three Italian regulators launched their investigation. Participants included regulators with responsibilities for various aspects of the digitised economy from around the world. Participants expressed their concerns on information and power disparities between individuals and the service providers whom they rely on. Their discussions touched on common short and longer term issues, such as fake news and voter manipulation, data portability, as well as the emergence of attention markets and the opacity of algorithms which determine how personal data are collected and used. Regulators have identified four areas of overlap or possible gaps in the current legal framework:
- unfair or harmful terms and conditions for digital platforms;
- security considerations for connected things and apps;
- the ‘fake news’ phenomenon; and
- the longer term impact of big tech sector mergers.
The next meeting of the DCH will take place in the fall.
For Further Background
- Visit the Big Data page on the EDPS website.
- For a bibliography of materials on the Interaction of Competition Policy, Big Data and Personal Data.
- On the use of Big Data (from a non legal mind point of view): Weapons of Math Destruction