Considerable debate exists as to the interaction of antitrust and privacy law. This nuanced debate encompasses many difficult questions: when is there a strong consumer preference for privacy, and when is there not? Under what circumstances do consumers happily trade data for service access? When asked, do consumers they tell researchers when these instances are? In an online world characterized by large platforms, is data collection a feature or a bug, and are the terms competitive? Can consumers and publishers internalize possible externalities from data use, or are there incentives for data processors to generate external costs?
All these questions have profound implications for interoperability, because they affect how much use can be made of data across systems: the stronger the data protection right, the weaker the prospects of interoperability. The purpose of this article is to note significant moves in recent months towards a more consumer-centric approach to answering these questions, which holds out the promise of greater interoperability. There is a prospect of using a well-known competition law device – the consumer welfare standard – to unite competition and privacy analyses, placing the consumer interest, and not those of producers or regulators, at the heart of the answers to these crucial questions.
Dnes, Stephen, Big Data Protection: Big Problem? (June 11, 2021). Antitrust Chronicle, June 2021.