Data Protection and Competition Law Enforcement in the Digital Economy: Why a Coherent and Consistent Approach is Necessary

Abstract

AbstractThis contribution argues that a coherent and consistent interpretation of data protection and competition law is both possible and adequate. To illustrate this need, the ongoing abuse-of-dominance investigation by the French Autorité de la Concurrence against Apple is analysed. Representatives of the online advertising industry lodged a complaint against the introduction of Apple’s “App Tracking Transparency framework”. The latter includes a de facto obstacle to third-party tracking which shuts down advertisers’ access to those precious personal data that can be used for online advertising. With the Apple case in mind and by way of example, this paper argues that the regulation of consent to the processing of personal data under the GDPR serves as a dogmatic link between data protection and competition law, as this legal basis is at the heart of many digital business models. The GDPR provides a normative framework to determine when consent has been “freely given”. This can be a fruitful starting point for a competitive assessment, too, as both legal regimes pursue the objective of protecting consumer autonomy and consumer choice. The paper finishes by finding that its dogmatic approach corresponds to recent developments within competition law legislation and enforcement.