TACD publishes resolution on competition, privacy and consumer welfare

Today, TACD publishes a policy resolution on competition in response to the European Commission’s and the US Federal Trade Commission’s consultations on the future of competition law and policy. The resolution looks at the interplay between competition, privacy and consumer welfare in digital markets and sets out seven recommendations.

The expansion of digital technologies and digital markets has brought with it an array of opportunities and challenges. Technology has helped reduce production and distribution costs, and has created the conditions for new consumer markets offering innovative products and services. In the process this has made markets more competitive and efficient for consumers. However, applying competition laws in digital markets has become a challenge.

TACD’s resolution highlights a number of concerns, which include the inability of existing legal frameworks to tackle new forms of exploitative practices that lead to consumer harm, and reduced incentives to innovate on technology that would enhance privacy due to companies who exploit personal data viewing data protection legislation as a threat to their business model.

In its policy resolution, TACD sets out seven recommendations to the EU and US competition authorities:

– Carry out sector examinations to better understand the impact of practices and agreements that shape digital markets;

– Assess the market power of firms using online data, using as a proxy the control of data necessary for the creation and provision of services in view of widening competition assessments;

– Develop theories of harm in competition assessments that can take into account the degradation of product quality and the potential loss of privacy and consumer agency;

– Adopt a multi-disciplinary approach to digital markets;

– Consider data protection and privacy standards when assessing mergers and acquisitions, and prohibit such mergers or impose conditions when they would negatively affect the protection of personal data, the privacy of individuals, and more generally democracy and pluralism;

– Identify the right elements for future co-operation between EU and US agencies about the role of competition laws to promote effective competition in digital markets;

– Ensure that consumers can obtain compensation for harm suffered by anti-competitive conduct, including through collective proceedings.

The full resolution on competition, privacy and consumer welfare can be found here.

More information on the consultations:

– FTC’s public consultation on competition and Consumer Protection in the 21st Century

– EU’s consultation on shaping competition policy in the era of digitisation