Monday, January 11, 2021
As a former agency head explains, antitrust litigation is like fishing: “everybody likes to catch them, but nobody wants to clean them.” Antitrust enforcers around the world are eager to catch digital platforms with monopolization cases, but little attention is being paid to the remedies that will follow.
This article examines a new source of complexity for those monopolization remedies — data privacy. In particular, it considers remedies that require access to, or disclosure of the information held by digital platforms, to restore online competition. How are such “data access” remedies impacted by the rise of consumer data privacy law?
As the article explains, neither current theory nor past monopolization cases answer this question. Existing theories on the interface between antitrust law and data privacy are focused on liability. Their application may therefore miss the distinct privacy impacts that arise at the remedies stage of a case. Past monopolization cases that ended in data access remedies often ordered disclosure of company, not consumer, information. Individual data privacy was simply not relevant. The rare historical cases that ordered disclosure of consumer information pre-date the rise of U.S. data privacy law from the mid- 1990s to present. For the first time, antitrust remedies may well have to contend with consumer privacy protection, and the control such protection can impart over competitively important data.
The article calls for antitrust analysis to consider data privacy in the design of remedies, particularly for digital platforms. Without such analysis, remedies may unwittingly cause privacy harms that outweigh the benefits to consumers from restored competition. A remedy that causes such a reduction in consumer welfare would undermine the purpose of bringing antitrust enforcement action.
The article concludes with discussion of two potential approaches for implementing the proposal. The first focuses on obtaining consumer consent to remedial disclosure and use of data. The second focuses on legislative or judicial definitions of data privacy interests that exclude remedial disclosure. Both demand careful consideration of consumer privacy, and the new complexity it creates for monopolization relief.