Excessive Data Collection as Anti-Competitive Conduct: The Approach of Germany and India

Digital platforms are characterized by their multi-sided model which offers services to users on one side without charging any monetary price by cross-subsidizing these services by charging businesses for targeted advertising on the other side of the platform. Hence, the collection and aggregation of data (including personal data) across various services of these digital platforms become a strategic asset for digital platforms given the insights that can be drawn from data analytics. However, the accumulation of data gives rise to a host of challenging issues which governments, regulators, and courts across the world are grappling with. Some of the concerns are that excessive data accumulation may lead to the entrenchment of the dominant position of incumbents deterring rivals from entering the market, harmful price discrimination, or violation of users’ privacy. Much of the debate surrounding the data accumulation challenge posed by digital platforms revolves around the suitability of antitrust laws for the purpose. Some of the questions raised are if data accumulation issues are antitrust issues as opposed to privacy or consumer protection issues, and if so, how they may be addressed under the existing antitrust laws or if the current antitrust laws require a revision to address the challenges posed by digital platforms.This paper seeks to explore how excessive data accumulation issues are dealt with under antitrust laws with a focus on Germany and India. To this end, this paper first examines the special characteristics of digital platforms in Part II and the concept of abuse of dominance in these jurisdictions in Part III. Further, this paper examines the German Federal Cartel Office’s (“FCO”) decision to prohibit Facebook’s data collection policy under the German competition law (“Facebook-Germany case”) in Part IV and India’s Competition authority’s approach in initiating an investigation towards the Facebook-WhatsApp data sharing as a result of WhatsApp’s updated privacy policy in Part V. Further this paper discusses if the import of data protection laws in anti-trust scrutiny is appropriate in Part VI.