Exploring the Intersection of Data Protection and Competition Law

Digital economy has come forth as a stimulator for rapid change in business processes and consumption patterns, with technology companies increasing their market share and coming out as top performers in the global and national value chains. The key resource for these companies is the data through which they optimise their platforms. This has led Big Tech companies to become data goliaths, giving them a significant competitive edge in the market. The same phenomenon is being observed in the Indian digital market, wherein companies like Facebook, Apple, Google, and Amazon hold prominent market share. Their functioning in multi-sided markets has led them to become data silos. At the same time, Indian policy makers have introduced the draft Personal Data Protection Bill, 2019 (currently under consideration by the Joint Parliamentary Committee) and have recently amended the Competition Act, 2002 to address concerns pertaining to the digital economy. These measures show that the legislators are conscious of the value of data and privacy of its citizens. In light of this, this paper aims to synthesise the interface between competition law and data protection law to assess the contours of implementation of competition law principles in the digital economy. For this, the paper considers issues around zero price platforms and price bias; market dominance and data network effects; and data power and consumer harms. While assessing these issues, the paper takes into consideration the development of jurisprudence by competition authorities in the European Union and the United States of America, regarding the intersection of data protection and competition concerns. The scope of applicability and relevance of such jurisdictional developments to the Indian context have also been analysed. Furthermore, the paper recommends for collaborative regulatory approach between data protection authorities and competition authorities; optimising the applicability of data portability which could help in diffusing data accumulation; revision of the traditional competition law principles to make them better fit for the digital economy; encouraging adoption of privacy and data protection principles as good practices in business thus giving them a competitive edge; and exploring alternative forms of data governance models which can lead to data sharing while ensuring privacy of the consumers