This book gathers contributions from a broad range of jurisdictions, written by practitioners and academics alike, and offers an unparalleled comparative view of key issues in competition law, intellectual property and unfair competition law, with a specific focus on the use of personal data.
The first part focuses on the role of competition law in shaping the digital economy. It discusses the use of personal data, the market power of platforms, the assessment of free services, and more broadly the responsibility of dominant companies in the smooth functioning of the digital economy. In turn, the second part sheds light on how the conduct of influencers, native advertising and the use of AI for marketing purposes can be controlled by the law, focusing on the use of personal data and the impact of behavioral advertising on consumers.
In this regard, the book brings together the current legal responses across a number of European and other countries, all summarized and elaborated on in the form of two international reports.
The LIDC is a long-standing international association that focuses on the interface between competition law and intellectual property law, including unfair competition issues.
Author(s): Bruce Kilpatrick, Pierre Kobel, Pranvera Këllezi
Series: LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition
Publisher: Springer
Year: 2022
Language: English
Pages: 462
City: Cham
Preface
Contents
Contributors
Abbreviations
Part I: Antitrust in Data Driven Markets
1: International Report
1.1 Introduction
1.2 Background
1.3 Defining the Term ``Platform´´
1.3.1 Legal Framework
1.3.2 Characteristics
1.3.3 Different Types of Digital Platforms
1.3.4 Market Definition
1.4 Market for Free Services
1.4.1 General
1.4.2 Fundamental Acceptance of the Concept of Markets for Free Services
1.4.3 Methodological Issues
1.5 Market Power and Abuse of Dominant Position
1.5.1 General
1.5.2 Relevant Criteria
1.5.3 Relative Market Power or Economic Dependency
1.5.4 Other Legal Instruments
1.6 Undertakings with Excessive Market Power
1.6.1 General
1.6.2 European Level: Digital Markets Act
1.6.3 German Law
1.6.4 French Law
1.6.5 UK Law
1.6.6 Other Jurisdictions
1.7 Comparison Portals
1.8 Most Favoured Nation Clauses
1.8.1 General
1.8.2 MFN-Related Specific Regulation
1.9 Interaction Between Competition Law and Data Protection Regulation
1.9.1 General
1.9.2 Starting Point: Complementary Relationship
1.9.3 Current Approaches
1.9.4 Need for Further Coordination
1.10 General Terms and Conditions, Consumer Protection
1.11 Telecommunication Sector
1.11.1 General
1.11.2 Consumer Protection
1.11.3 Mergers and Abuse of Dominant Position
1.12 Summary
2: Australia
2.1 Introduction
2.2 Platform
2.3 Relevant Market and Free Services
2.4 Market Power and Data
2.5 Misuse of Market Power
2.5.1 Sector-Specific Regulation: Telecommunications Industry
2.6 Acquisition of Market Power
2.7 Consumer Protection
2.7.1 Data Collection
2.7.2 ACL Provisions
2.7.2.1 Unfair Contract Terms
2.7.2.2 Unfair Trading Practices
2.7.3 Comparator Websites
2.7.4 Price Parity Clauses
2.8 Data Protection
2.8.1 Background to the Australian Information Privacy Law Framework
2.8.2 The Platform Context
2.8.3 The CDR
2.9 Online Advertising
2.10 Conclusion
3: Austria
3.1 Introductory Remarks
3.2 The Role of Antitrust Authorities Regarding the Digital Economy
3.2.1 Digitalization, a New Field of Law in Austrian Competition Law
3.2.2 Austrian Competition Law and Its General Approach to the Digital Economy
3.2.3 Austrian Competition Law and Data Protection, Compared to the German Law and Practice
3.2.4 Assessment of Market Power and the Relevance of Network Effects in Digital Markets
3.2.5 Amazon and the General Definition and Concept of a `Platform´
3.2.6 Can There Be an Antitrust `Market´ for Free Services?
3.2.7 Online Advertising
3.2.8 Best-Price Clauses and Most-Favoured-Nation Clauses
3.2.9 Network Cooperation in the Telecommunication Sector
3.2.10 Abuse Without Dominance?
3.2.11 Consumer Protection
4: Belgium
4.1 Introduction
4.2 Institutional Aspects: From Advocacy to Case Law in Digital Markets
4.3 Substantive Assessments in Digital Markets
4.3.1 Market Definition and Power in Digital Markets
4.3.2 Restrictive Agreements and Abuse of Dominance in Digital Markets
4.3.2.1 Self-Preferencing by Gatekeepers
4.3.2.2 Access to and Use of Data
4.3.2.3 Most Favoured Nation Clauses
4.3.2.4 Abuse of Dominance Without Dominance-and Even Without Abuse
4.4 Conclusion
5: France
5.1 Tools and Types of Regulatory Intervention to Address Market Power in Digital Markets
5.1.1 The General Competence of the Competition Authority
5.1.2 Sectoral Regulators and Public Authorities Can Also Intervene in the Field of Digital Platforms
5.2 Competence of Antitrust Authorities in the Field of Personal Data Protection in the Case of Social Networks and Other Digi...
5.3 Determining ``Market Power´´ in Digital Markets
5.3.1 The Historical Absence of Guidelines to Assess the Market Power of Platforms
5.3.2 Market Power as a Criterion to Define a ``Structuring Digital Platform´´
5.3.2.1 Contribution of the FCA
5.3.2.2 ARCEP Contribution
5.4 The Competition Law Definition of a ``Market´´ for Free Services
5.5 Sector Enquiries on Online Advertising by Antitrust Authorities
5.6 Regulators´ Treatment of Data Collection: The FCA´s Approach to the Use of General Terms and Conditions and Data Collection
5.6.1 The Absence of a ``Facebook Case´´ in France
5.6.2 The FCA´s Decisional Practice on the Use of Certain Data by Dominant Operators Outside Digital Networks and Platforms
5.6.3 The FCA´s Decisional Practice on the Terms of Use of Platforms and Networks
5.7 Parity Clauses, Market Power and the Special Liability of Dominant Firms in the Case of Digital Platforms
5.7.1 Effect-Based Analysis from the Perspective of Competition Law
5.7.2 The Per Se Approach Under the ``Restrictive Practices´´ Law
5.7.2.1 The Prohibition of Most-Favoured-Customer Clauses as Such
5.7.2.2 Prohibition of Most-Favoured-Customer Clauses Creating a Significant Imbalance in the Rights and Obligations of the Pa...
5.7.2.3 Sectoral Ban Per Se
5.8 Comparison Portals, the Role of Competition Authorities in Consumer Protection and Other Intervention Tools
5.8.1 Competition Law and the Role of the FCA Regarding Comparison Portals
5.8.2 Consumer Law as a Tool for Understanding the Practices of Comparison Portals
5.8.3 Civil Law and the Role of the Courts
5.9 Abuse and Treatment of Non-dominant Business Practices
5.9.1 The Concept of Abuse of Economic Dependency
5.9.2 Restrictive Competition Practices
6: Germany
6.1 The Collection of User and Device-Related Data
6.2 Determination of Market Power in Digital Markets
6.2.1 Market Shares as Starting Point
6.2.2 Competitive Pressure Through Innovation, § 18 IIIa No. 5 GWB
6.2.3 Network Effects, § 18 IIIa No. 1 GWB
6.2.4 Parallel Use of Networks, § 18 IIIa No. 2 GWB
6.2.5 Economies of Scale, § 18 IIIa No. 3 GWB
6.2.6 Access to Data, § 18 IIIa No. 4 GWB
6.2.7 Relative Market Power and Superior Market Power
6.2.8 Intermediation Power
6.2.9 Undertakings with Paramount Significance for Competition Across Markets
6.3 Platform Markets
6.4 ``Markets´´ for Free Services
6.5 Online Advertising
6.6 General Terms and Conditions with Regard to Data Collection
6.7 Most Favored Nation Clauses and Cooperation Between Content Providers
6.8 Cooperation Between Network Operators
6.9 Comparison Portals and Consumer Protection
6.10 Abuse Proceedings Below the Threshold of Dominance
6.10.1 Relative Market Power Within a Vertical Relationship
6.10.2 Superior Market Power Within a Horizontal Relationship
6.11 Parity Clauses
7: Hungary
7.1 Introduction
7.2 The Role of Data in the Digital Markets: Data Protection Implications in Competition Law
7.3 Platforms
7.3.1 Definition of the Term `Platform´
7.3.2 Market Power of Networks and Platforms
7.3.2.1 Effect of Online Presence on Offline Market Power
7.3.2.2 The Role of Data in Mergers Between Players of Digital Markets
7.3.2.3 `New´ Merger Regime and Ancillary Restrictions in the Context of Start-Ups
7.3.2.4 Issues Raised in the NetPincér Case
7.4 Market for Free Services
7.4.1 Case Law
7.4.2 Free Services in the Context of DCTs
7.5 Enforcement Measures in the Field of Digital Markets and Online Services
7.5.1 GVH Proceedings Against DCTs Constituting Unfair Commercial Practices
7.5.1.1 DCT as Commercial Practice
7.5.1.2 GVH Case Law Concerning Online Platforms
7.5.2 Sector Inquiries
7.5.2.1 The Outcomes of the Online Accommodation Booking Sector Inquiry
7.5.2.2 The GVH Approach and Case Law on Price Parity Clauses
7.5.3 Market Studies
7.5.3.1 Findings of the DCT Market Study
7.5.4 The GVH´s Case Law on the Responsibility of Dominant Companies in Digital Markets
7.5.5 Other Potential Legal Consequences of the Unlawful Use of DCTs
7.5.6 The Issue of Interim Measures in the Digital Sphere
7.6 Latest Hungarian Developments and Case Law in the Telecommunication Sector
7.6.1 Hungarian Approach Regarding Broadband Competition
7.6.2 Ensuring Effective Consumer Protection
8: Norway
8.1 Introduction
8.2 Norwegian Competition Law and Policy in the Digital Economy: A General Perspective
8.3 Norwegian Digital Competition Policy: Specific Issues
8.3.1 Introduction
8.3.2 Market Definition and Market Power in the Digital Economy
8.3.3 Telecom and Digital Infrastructure
8.3.4 Data Protection and Privacy
8.3.5 Digital Platforms and Online Advertising
8.3.6 Comparison Portals and Sector Inquiries
8.3.7 Abuse Proceedings in the Absence of Dominance
9: Switzerland
9.1 Introductory Remarks on the Approach of the Swiss Competition Authorities in the Digital Economy
9.2 Swiss Digital Competition Policy: Specific Issues
9.2.1 Data Protection and Data Collection
9.2.2 Market Definition and Market Power
9.2.3 Online Advertising
9.2.4 Telecom and Digital Infrastructure
9.2.5 Abuse Proceedings in the Absence of a Dominant Position
9.2.6 Price Parity Clauses
9.3 Conclusion
10: United Kingdom
10.1 Introduction
10.1.1 The Furman Report (2019)
10.1.2 The CMA´s Digital Report (2020)
10.2 UK´s Approach Towards the Market Power of Social Media Networks and Online Platforms
10.2.1 UK´s Approach Towards Defining the Term ``Platform´´ and Other Linked Concepts
10.2.2 Can There Be an Antitrust ``Market´´ for Free Digital Services in the UK?
10.3 Dominant Companies and Special Responsibility Status
10.3.1 Policy Proposals in Response to the CMA´s Digital Report
10.3.1.1 Government Response to CMA´s Digital Report
10.3.1.2 Further Advice from Digital Markets Taskforce
10.4 Digital Networks and Online Platforms: The Interaction Between Competition Law and Data Protection Regulation
10.4.1 Developing Tensions Between Data Protection and Competition Law
10.4.2 Personalised Digital Advertisements and Data Protection
10.4.3 The Increasing Overlap Between Competition Law and Data Protection
10.4.4 CMA´s Treatment of General Terms and Conditions in Relation to Data Collection
10.5 CMA´s Wide Competition and Consumer Protection Powers and Their Application to the Digital Economy
10.5.1 CMA´s Consumer Protection Powers Under Market Investigations
10.6 The UK´s Approach to MFNs
10.7 Conclusion
Part II: Legal Framework for Influencers, Native Advertising and Control over the Use of AI in Marketing
11: International Report
11.1 Introduction
11.2 Influencers, Native Advertising and Other Practices of Disguised Advertising
11.2.1 Identification of Practices of Disguised Advertising
11.2.2 Legal Framework Applicable to Disguised Advertising
11.2.3 Fake Reviews and Fake Endorsements
11.3 The Use of Artificial Intelligence in Marketing
11.3.1 Price Discrimination and Artificial Intelligence Under Consumer Law
11.3.2 The Use of Artificial Intelligence in Marketing and Possible Implications Under Competition Law: Risks of Collusion and...
11.3.2.1 Algorithmic Collusion
11.3.2.2 Abuse of Dominance
11.3.2.3 Can Businesses Be Discriminated Due to the Use of Artificial Intelligence?
11.3.3 The Use of Artificial Intelligence in Marketing and Possible Implications Under Data Protection Laws
11.3.3.1 Lawful Processing of Personal Data
11.3.3.2 Transparency Principle for the Processing of Personal Data
12: Austria
12.1 Introduction
12.2 Legal Framework in Influencer Marketing and Native Advertising
12.2.1 Terminology
12.2.2 Labelling Obligations in Influencer Marketing
12.2.2.1 Labelling Obligations According to Sec26 MedienG
12.2.2.2 Labelling Obligations According to Sec31 AMD-G
12.2.2.3 Labelling Obligations According to Sec6 ECG
12.2.2.4 Relevance to Unfair Competition Law and Transparency Provisions Within the UWG
Acting in the Course of Trade
Transparency Provisions Within the UWG
12.2.2.5 Exemptions from the Labelling Requirement on the Basis of Perceptibility
12.2.2.6 Form of Labelling
12.2.3 Influencer Marketing and Product Liability
12.2.4 The Issue with ``Astroturfing´´
12.2.5 Conclusion
12.3 Algorithmic Collusion and Personalised Pricing Under Competition Law
12.3.1 Introduction
12.3.2 Algorithmic Collusion
12.3.2.1 Ban on Cartels
12.3.2.2 Application to Different Scenarios
Algorithms as Tools to Implement Pre-existing Agreements
Parallel Use of Individual Algorithms with No Pre-existing Agreement
12.3.2.3 Attribution and Responsibility
12.3.3 Personalised Pricing
12.3.3.1 Abuse of a Dominant Position
12.3.3.2 Application to Different Scenarios
12.3.3.3 Digression: Austrian Local Supply Act (Nahversorgungsgesetz)
12.3.4 Conclusion
13: Belgium
13.1 Introduction
13.2 The Belgian Legislative Landscape
13.2.1 Unfair Commercial Practices
13.2.1.1 General Legislation
13.2.1.2 Specific Legislation
13.2.1.3 Self-Regulation
13.2.2 Privacy and Personal Data
13.2.3 AI
13.3 Identifiability and the Precise Scope of Advertising Laws
13.3.1 Non-commercial Advertising
13.3.2 Identifiability of the ``Commercial´´ Communication
13.4 Personalisation: Providing the Consumer with Tailor-Made Communication or Product, with or Without Automated Means
13.4.1 Consumer Information
13.4.1.1 Consumer Laws
13.4.1.2 Under Data Protection Laws
13.4.2 Privacy by Design and Accountability Principle
13.4.2.1 Finding the Appropriate Legal Basis for the Processing of Personal Data
Privacy Fatigue
Freedom to Consent and Agreements Under the New Deal for Consumers
Imbalance of Power Between the Data Subject and the Data Controller
13.4.2.2 Influence of Other Legislations
13.4.2.3 Accountability and Transparency
13.4.3 Consumer Rights and Remedies
13.4.3.1 Remedies Under Consumer Law
13.4.3.2 Remedies Under the GDPR
13.4.4 Synergies Between Consumer Law and Data Protection
13.5 Conclusion
14: Brazil
14.1 Personal Data Protection in Brazil and Current Challenges
14.2 Issues in the Light of Enacted Legislation
14.2.1 Search Engines, Artificial Intelligence and Freedom of Contract
14.2.2 Lawful Processing of Data by Chatbots (AI) upon the Closing of Contracts
14.2.3 Use of Artificial Intelligence for Processing Personal Data and Data Protection Impact Assessment
14.2.4 AI Software, Individualized Advertising and the Lawful Processing of Data Under the ``Legitimate Interest´´ Clause
14.2.5 Profiling and Individualized Ads and Prices Under the LGPD
14.2.6 (In)sufficiency of Informed Consent to Data Processing
14.2.7 Consent, Cookie Policy and Access to Internet Services
14.2.8 Black Box Phenomenon and the Transparency Principle
14.2.9 On the Legality of Manufacturers´ Prohibition on the Sale of Their Products on Certain Platforms in Order to Protect th...
14.2.10 Unequal Competitive Conditions and the Use of Artificial Intelligence by Businesses
14.2.11 Algorithms and Discrimination Against Companies in the Placement of New Advertisements
14.3 Issues in the Light of Legal Principles and Propositions for Future Regulation
14.3.1 Transparency and Automated Data Collection
14.3.2 Need for Additional Legal Instruments to Restrict the Collection and Use of Data for the Personalization of Content, Ad...
14.3.3 Creation of User Profiles Which Currently Also Use Data from International Third-Party Sources
14.3.4 Price Collusion Through Artificial Intelligence Software
14.3.5 Ethical Limits of Personalized Prices
14.3.6 Incorporation of Legal Requirements and Ethical Values into the Programming Process of Algorithms to Prevent Discrimina...
14.3.7 Human Tasks That Can Be Carried Out Automatically by AI: Future Developments
14.3.8 Personalized Election Campaigns and Democracy
15: Germany
15.1 Introduction
15.2 Algorithms´ Influence on the Customer´s Contractual Freedom
15.2.1 Algorithmic Forecast and Individual Autonomy
15.2.2 The Instrument of Informed Consent
15.2.3 Improvement of Transparency
15.2.4 The Right to Explanation
15.3 Unfair Commercial Practices and the GDPR
15.4 Commercial Practices in the Debate
15.4.1 Influencing
15.4.1.1 Introduction
15.4.1.2 Recent Case Law
15.4.1.3 German Bill to Strengthen Consumer Protection in Competition and Commercial Law
15.4.2 AI and Marketing
15.4.2.1 Data Quality
15.4.2.2 The Use of Incorrect Data
15.4.2.3 Data Management
15.4.2.4 National Restrictions on the Creation of User Profiles That Also Use Data from International Third-Party Sources
15.4.2.5 Unequal Competitive Conditions Due to the Use of AI
15.4.2.6 Discrimination Against Companies That Were Not Subject to Previous Purchase Decisions
15.4.2.7 Legal, Social and Ethical Values to Prevent Discrimination
15.4.2.8 Prohibition of AI Marketing in Certain Areas of Life
15.4.3 Personalised Prices
15.4.3.1 Interference with Art. 22 (1) GDPR
15.4.3.2 Further Data Protection Requirements
15.4.3.3 Price Collusion Due to the Use of the Same or Similar Algorithms
15.4.3.4 Collusion of Algorithms to Achieve Higher Prices
15.4.3.5 Promotion of the Stability of Cartels Through the Use of Price Algorithms
15.4.3.6 Combating Consumer Discrimination Through Consumer, Competition and Unfair Competition Regulations
15.4.3.7 Prohibition of the Use of Price Algorithms in Certain Areas of Life
15.4.3.8 Consumer-Friendly Algorithms
15.4.4 Prohibition of Online Distribution
15.4.4.1 Prohibition of the Sale of Products on Certain Platforms
15.4.4.2 Prohibition of Product Advertising on Search Engines
15.4.5 Product Liability
15.5 The Impact of Personalised Political Campaigns on Democracy
15.6 Future Perspectives
15.6.1 Specific Regulatory Instruments
15.6.2 No Need to Establish Special Units
15.6.3 Codes of Conduct
15.6.4 A Vigilant and Learning Approach
15.7 Conclusion
16: Hungary
16.1 Introduction
16.2 Privacy Implications
16.2.1 Lawfulness and Purpose Limitation
16.2.2 Transparency
16.2.3 Accuracy and Data Quality
16.2.4 Fairness
16.2.5 Integrity and Confidentiality
16.2.6 Data Minimisation
16.2.7 Storage Limitation
16.3 Consumer Protection and Competition
16.3.1 Market Power and the Use of AI
16.3.2 Algorithmic Collusion
16.3.3 Consumer Discrimination in Pricing
16.3.4 Online Sale Restrictions
16.3.5 Practice in Hungary as to Influencer Marketing
16.4 Enforcement
