Over the last decade, we have seen drastic changes in our surroundings, and one of the most important is the emergence of digital technologies that has made empowerment universal and widespread1. Digital technologies have improved human life and made a lot of things more accessible as compared to earlier times, but every good thing has a price, and in this case, the price is our data. According to an IBM estimate from 2014, the last two years alone have produced 90% of the world’s data. Data now encompasses more than just stock information, such an individual’s name, email address, sex, and age. It currently includes unstructured data from several, improbable sources, such as voting preferences, environmental rainfall, food patterns, heart rate, location, recycling practices, when a car’s thermostat switches on, and spoken sexual pronouns. Artificial intelligence and complex algorithms are then used to examine this enormous amount of disorganised data in order to uncover insights that would otherwise go undiscovered—and occasionally rather unexpected.2 Data have the advantage of being inexpensive to gather and store. They can enhance their goods and services and provide advertisers with highly targeted advertising chances thanks to the user data. Data is not like other previously monopolised goods or services. Data is valuable by nature. Considering the value of data, an online player would strive to gather as much user data as possible in order to boost productivity and create new goods and services. This might result in an accumulation of user data in the hands of a small number of players which makes the data which has made our lives easier can also threaten us. We must push and pull appropriate levers to ensure digital technology reaches its potential.
The major concern in the present time we face is the monopolisation of the data in a few big tech companies. Earlier, the competition law was the tool to handle the complexities of this situation. Still, since the data does not fit in the traditional economic models and is different from other goods or services, it is difficult to handle data monopolisation, considering multifaceted character, in addition to free services, network effects, economies of scale and scope, and the significance of data access and monetization3.
Currently, data falls under the purview of consumer, technology, and competition law, running parallelly dealing with the same data. At present, the data laws are more consumer-centric i.e., they are made in order to protect consumers’ data and prevent them from getting exploited by big tech companies. Like the European General Data Protection Regulation (GDPR) has given complete control to its people over their data, to protecting their data and giving their right to privacy. But the Law-making authorities have failed to consider that data is the main remuneration for the big tech companies and will impact the competition and result into the monopolisation of big tech companies.
The emergence of digital giants like Amazon, Apple, Microsoft, Facebook, and Google may be attributed mostly to the data-driven network effect. As defined by the OECD Network effect is the gains enjoyed by consumers of a product when more consumers use that product. For example, users of social networks experience a benefit, or positive externality, as more of their acquaintances set up accounts on the network. Historically, it has been difficult to mitigate markets affected by networks.4
Because data monopolies prevent the data from being freely traded, mitigation has shown to be significantly more challenging in these situations and are concentrated in hands of few big tech companies. Companies like Google, Amazon, and Facebook provide their free search, social or e-commerce platforms because they take our data as their remuneration. We tend to use these platforms even though the other rival offers superior privacy and security since the more data one has, the better services one can offer5. The quantity of data that WhatsApp and Instagram can offer is more important to large digital corporations like Facebook than their technological prowess. They even abuse their position as big data by setting unfair terms by these big tech companies for data access. They may also lock-in user data and reject data portability or interoperability to preserve or strengthen their competitive advantage.6 They even obstruct the collection of data by small companies. For example, Google makes all the Android mobile phone companies install its apps like Google Chrome, Google Play Store, etc, and with the development of new apps, they are also added like now Google One and Google files are also there when one buys a new Android phone. Even Apple have similar practice to concentrate all data to it as they provide their own to be used in i phones and other apps doesn’t work the same way it works in android phones.
The reason why it is important to prevent monopolization of data to big tech companies since in the present time the economy is digital economy and data is the new fuel and to maintain the fundamental of economy it is important that there is free competition. Even though the competition law, consumer law or data protection laws have been enacted but these are limited to protecting the data of the consumers or preventing abuse of power but still it does not prevent monopolisation of data to some big data companies.
There has been discussion in the OECD consumer data right and competition, about whether these laws should be merged or not. where many countries opposed the idea of merging these laws concerning data, many favoured it as well. Currently, as these areas are to grow more, it was concluded that they shouldn’t be merged but should be considered while making laws and not to be dealt with parallelly. Professor Wolfgang Kerber, Professor of Economics at the University of Marburg, specialising in competition and data also argued that competition law and privacy issues should be considered simultaneously7. Also cited by the United States in the OECD in the “Discussion of the roundtable on consumer data rights and competition”, there is an undeniable interplay between competition and privacy since they are both concerned with data.
For example, the European General Data Protection Regulation which is at present considered to be the best data protection law because of the power of control it provides to its people over their data. Still, it does not prevent from monopolization of big tech companies, in fact the big tech companies have been benefitted. Like first, the one who got affected are the small companies who got swapped due to heavy fine levied on them and though the fine has been levied on these big tech companies as well they have endured it well and now is being free from most of the competition that they used to have and are continued to store and expand their data. Second, apart from swapping the competition this has in a way concentrate more power in the hands of these big tech data companies. As these big tech companies also acts as intermediaries. Now those who choose not to opt out their data is still collected and since the number of consumers who choose not to opt out are significantly less resulting into companies paying more in order to get those data. Also, in cases where users decide to give selective consent, i.e, allowing data processing by only certain trusted websites for which they tend to rely on these big tech companies due to their reputation and the services they provide, which will further allow them to collect more data and will also act as a barrier to entry of new companies. Even in the OECD discussion on consumer data rights and competition, the European Commission mentioned that it just provides minimum safeguard to the data subjects.
Every country has its own competition and data protection laws for dealing with the growing concern of anti-trust and privacy issues. However, few countries have tried to embrace the interplay between competition and data protection laws to cater to anti-trust and privacy issues, respectively. For example, Italy has taken multi-disciplinary approach and the three authorities i.e, the „competition agency’, the „communications regulator’ and „data protection agencies’ have signed a memorandum of understanding to cooperate adequately to deal with the big data.
Columbia is extending its influence over other domains of policy making through the use of competition advocacy. The Columbian „Competition Authority’ (the SAC) has power not only in respect of competition but also „data protection’ and „consumer protection’ in order to assess the impact of proposed policies on the competition that involves data and to provide recommendation to mitigate those effects.
Australia has Consumer Data Right (CDR) to deal with all consumer data and the „Australian Competition and Consumer Commission’ (ACCC) is responsible for making rules for the CDR and implementing the competition rule along with the Office of the „Australian Information Commissioner for Privacy Regulation’. The application of a joint compliance and enforcement policy by the two agencies has been agreed upon. Also, both organisations collaborate closely with the Data Standards Board, which is in charge of creating the framework and data standard for data exchange.
It is very important to prevent the big tech data companies from becoming data monopolies and exploit the data consumers and compromise consumers’ experience, privacy and services. According to an Italy consumer survey done by the „Italian competition authority’, around 93% of those surveyed were interested in their data privacy protection, but only 3% denied consent for collecting and utilising their data. This shows that though data users are concerned about their data privacy and protection, even when given power over the collection and use of their data they fail to protect and this is rightly exploited by big tech companies. Ms Denhem, the United Kingdom’s „Information Commissioner’ (head of the UK Information Commissioner’s Office (ICO)) and Chair of the „Global Privacy Assembly’ and Professor Kerber, in a round table of the OECD discussion on Consumer Data Rights and Competition, agreed that policymakers should be cautious about policies relating to data protection as data users expect that their government have their back. Also, it is unrealistic to expect consumers, data subjects, individuals, or the market to know exactly what they are allowing when there is an authority or authorities monitoring, particularly some of these large platforms. These authorities have standards that the platforms must adhere to and take action when there is harm to any of these parties. Hence, it become really necessary for the authorities to understand the digital economy and that now these do not run parallel but have to be catered simultaneously due to the overlapping of interest of data users. In 2020, the discussion of the „roundtable on Consumer Data Rights and Competition’ of the competition committee of the „Organization for Economic Co-operation and Development’ (OECD) the Chairman quoted Zanfir-Fortuna and Ianc8, “In a second phase, that with the realization that data protection rule may in fact have a role in hampering or enabling competition took more and more space in both policy making and adjudication, with data protection authorities starting to play a role.” They termed the third phase as the “Uberprotection phase”, defined safeguarding people’s rights and well-being as consumers, data subjects, and market players through coordinated enforcement and logical policymaking by consumer protection, competition, and data protection agencies.
Apart from considering consumer, technology and data protection law simultaneously to appreciate the overlapping of the data concerned and prevent the big tech companies to get benefitted from the gap between these laws and instead of protecting the consumer data and maintaining competition in the present digital economy we throw them at their mercy. It is also important to understand that the companies are no longer limited to the national boundaries; loss in one nation is recovered from benefitting in another nation. These companies operate globally so to effectively stop them from monopolising global laws should also be considered all with handling it at national levels.
Conclusion: Addressing the monopolization of data by big tech companies requires a multidisciplinary approach that considers the interplay between competition law, consumer rights, and data protection. As digital giants continue to wield influence through data-driven network effects, policymakers must collaborate across jurisdictions to implement effective regulations that safeguard consumer interests, promote fair competition, and prevent the concentration of data in the hands of a few. By embracing the complexities of the digital era, we can ensure that data remains a force for empowerment rather than exploitation.
Notes:-
1 Sébastien Evrard,Connell O‟Neill,Hayley Smith,Molly Heslop and Nick Hay, Intersection of competition law and data privacy poses challenges to market regulation,10 March, 2023, https://globalcompetitionreview.com/review/the-asia-pacific-antitrust-review/2023/article/intersection-of-competition-law-and-data-privacy-poses-challenges-market-regulation
2 Daniel McIntosh, We Need to Talk About Data: How Digital Monopolies Arise and Why They Have Power and Influence, 23 J. 185, 213 (2019), https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1188&context=jtlp*We Need to Talk About Data: https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1188&context=jtlp
4 Summary of discussion of the roundtable on Consumer data rights and competition, (June 12 2022), Home page – OECD: https://www.oecd.org/
5 Daniel McIntosh, We Need to Talk About Data: How Digital Monopolies Arise and Why They Have Power and Influence, 23 J. Tech. L. & Pol’y (2019).
6 Umar Javeed, Data and Competition Law: Introducing data as non-monetary consideration and competition concerns in data-driven online platforms, SSRN-id3788178.pdf.
7 Summary of discussion of the roundtable on Consumer data rights and competition, (June 12 2022), Home page – OECD.
8 Zanfir-Fortuna, Gabriela and Ianc Sinziana, Data Protection and Competition Law: The Dawn of ‘Uberprotection’, (August 30, 2018), https://ssrn.com/abstract=3290824.
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