Privacy as a Parameter of Competition in Merger Reviews

This Article describes how merger reviews under current competition law are able to treat privacy as a dimension of competition. It illustrates this possibility through an examination of the European Commission’s reviews of the Facebook/WhatsApp merger and the Microsoft/LinkedIn merger. This Article examines the legal, factual and practical considerations that collectively amount to large and potentially insurmountable obstacles to this effort to improve privacy protection through merger review. These obstacles include the inability to apply or extend privacy law directly, the unresolved conceptual knots in clarifying the notion of privacy competition, the empirical difficulties in determining the existence and extent of privacy competition, and the requirement to show that any post-merger failure to satisfy privacy preferences results from a substantial lessening of competition, rather than from independent business judgements or the proper operation of competitive forces. This Article concludes that merger reviews are not likely to improve privacy very much. it would be better to turn to other aspects of antitrust law or to privacy law itself to vindicate privacy rights