According to Margrethe Verstager, European Commissioner for Competition, “we as consumers have a new currency that we can use […] – our data”[1] which most of the time consumers do not realize they posses and this is what the Digital Single Market Strategy addresses. The Digital Single Market Strategy aims at creating easy access and exercise of online activities under fair competition conditions and a high level of consumer and personal data protection for individuals and businesses[2].

One of the initiatives for the Digital Single Market Strategy is the General Data Protection Regulation including a right to data portability.[3]  This individual right in the new General Data Protection Regulation enables individuals to obtain their data that is being processed in an inter-operable format so as to transfer it to another social network or search engine.[4] In this way two birds are killed with one stone: (a) citizens remain in control of their data and, (b) it contributes to preventing anti competitive behavior in some particular cases.

Anti competitive behavior prohibited under articles 101 and 102 of the Treaty on the Functioning of the European Union alluded to would be when undertakings make it excessively difficult to users to transfer their data to another social network or search engine, for instance because of high switching costs.  In those circumstances, it can be considered that the competition on the digital market is negatively affected.

 

Thus, data protection mingles with competition law and stimulates interesting developments. The public enforcers for competition law and data protection must work together in the interests of the consumer. The Bundeskartellamt – the German national competition authority – is leading the way by investigating whether Facebook abuses of its dominant position on the market for social networks.[5] In the event of passive consumers refraining from using their right to data portability, the problem can be approached under competition law. Thus, the outcome of the investigation of the Bundeskartellamt will impact the way competition and data protection laws are enforced on digital markets.

If consumers use their right to data portability, it can force undertakings with a dominant position to compete on the quality of their service and not with the use of a lock-in system. There is one condition to this outcome: the willingness of consumers to claim this right to data portability; and this is not guaranteed since the current strength of social networks is its amount of users. Only time will tell how the right to data portability will be used and what impact it will have on the enforcement of competition and data protection laws.

Hadewich van Alst, Yitian Li and Xuan Hao

 

[1] https://ec.europa.eu/commission/2014-2019/vestager/announcements/competition-big-data-world_en

[2] Communication from the Commission on a Digital Single Market Strategy for Europe, page 3, accessible on: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52015DC0192&from=EN

[3] http://ec.europa.eu/justice/data-protection/reform/index_en.htm

[4] Article 18(2) of the proposal for a regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data, accessible on: http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf; and article 15 of the amended General Data Protection Regulation accessible on: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2014-0212

[5]http://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2016/02_03_2016_Facebook.html?nn=3591568