This article is written by Sparsh Agrawal from Symbiosis Law School, Hyderabad. In this article, the impact of big data on the competition law regime is discussed. Furthermore, a detailed analysis has been done with respect to the law prevailing on big data in other antitrust law jurisdictions.
Table of Contents
“Big data” is a concept which comprises large volumes of data with high velocity and it is processed by the computing software in order to produce unique data sets which will have a large commercial value. Pertinently, the data related issues fall under the ambit of data protection laws, but with the rise of technology and digitalization, the issue has been examined by various antitrust regulators across the world to determine whether ‘big data’ can hamper competition in the market.
It is imperative to understand how Big Data can be commercially exploited. A frequently used search engine has algorithms which analyse and record the search terms entered by the user. Then a detailed user’s profile is created which also contains collections of data from applications such as data-processing services and email. These user’s profiles which contain unique and individual information are sold to retailers and online advertisers for target advertising. The e-commerce platforms by using such data are able to get information about the user’s search history and preferences.
From the competition law perspective, the pertinent issue here is whether the use and access of Big Data by various enterprises confer them a market power by which they can have an edge over their competitors. Moreover, such access to “big data” can put entry barriers in the market. Even the mergers and acquisitions between the enterprises have raised the issue of whether consumer privacy can be a relevant non-price competition parameter in the competition assessment.
Various Antitrust regulators on Big data
Article 16 of the Treaty of Functioning of the European Union (“TFEU”) states that every person reserves a right to protection of their personal data, and when it is read with Article 7 of TFEU which identifies the Commission’s obligation to ensure that the laws and policies are applied in a consistent manner, allows for concentrated enforcement through data protection agencies and the Commission.
In Microsoft/Linkedin Merger, the European Commission has recognized the fact that though personal data privacy issues fall under the domain of data protection laws, it can be seen as a non-price competition factor in the merger control assessments.
Furthermore, the European Commission has also imposed a fine of USD 132.26 million on Facebook, when it did not disclose that Facebook/Whatsapp acquisition will have automated matching between the Whatsapp accounts and users of Facebook.
One of the first probes for speculation of “big data ” was when the European Commission was carrying out an investigation on the proposed acquisition of Shazam Entertainment by Apple (Apple/Shazam case). The European Union(EU) Commission held that the Shazam’s app was not unique in nature and the users could still have the opportunity to access and use similar databases. Therefore the case established a precedent that for assessment of anti-competitiveness, the quality and uniqueness of data also matters.
The merger of Google/Double click was under scrutiny as it raised concerns like Google would be able to track the online consumer behaviour in a better manner once it merges with double click, however, such a merger was still approved by the Commission considering that the other competitors would still have a potential to exert significant competitive pressure.
The United Kingdom’s Competition & Market Authority (“CMA”) acknowledges the fact that because of the complexity of the algorithms, it can be difficult for the competition authorities to investigate the unlawful combinations and abusive conduct of the enterprises. Moreover, the self-learning tool in the form of artificial intelligence in the algorithm can make the assessment of anti-competitive practices more difficult.
Furthermore, the UK’s anti-trust regulator stated that data has the potential to leverage data control in some markets in order to achieve enhanced market power in the relevant markets through tying-in arrangements or bundling.
United States of America
In the David Topkins case, Topkins created a computer code which, by using the company’s algorithm, sets prices of the posters analogous to price-fixing agreement and the same algorithm was entrusted to ensure compliance. It was held that David Topkins along with his co-conspirators distributed, sold and accepted payment for the agreed-upon posters at collusive, non-competitive prices on the Amazon marketplace.
In India, there is development taking place in the technology-driven markets such as e-commerce, cab-aggregators, digital wallets etc. Furthermore, these technology-driven markets are also involved in Merger and Acquisitions activity which can be a competitive concern since there will be sufficient holding of big data. Therefore, it is important for the Competition Commission of India (CCI) to carry out a study or give a decision which can act as the precedent for such technology-driven markets.
With respect to privacy concerns, the European Commission in the catena of cases has considered privacy concerns as a relevant parameter for the competition assessment. However, CCI in the case of Vinod Kumar Gupta v. Whatsapp Inc. stated that any breach pertaining to Information Technology Act, 2000 will not fall under the ambit of Competition law, 2002. Nonetheless, the competition regime is continuously evolving in India and it would be interesting to see the extent of CCI taking clues from European Commission for dealing in matters of Big data.
The Competition Commission of India (CCI) imposed a fine of 258 crores on Jet Airways, Indigo and SpiceJet after they found that they are doing tacit collusion and cartel-like behaviour in overcharging the cargo freight rates in the grab of fuel surcharge. According to the findings of CCI these leading airlines had fixed fuel surcharges at a uniform rate by using algorithms on the very same day and they increased the surcharges at the time without any analogous rise in the fuel prices. Such an act by the airlines was found to be anti-competitive as it resulted in indirectly determining the rates of air cargo transport which is in contravention of Section 3 of the Competition Act, 2002.
Data and Dominant position
In the case of Ashish Ahuja v. Snapdeal and others (Case No 17 of 2014), the CCI in context of marketplaces and e-commerce businesses stated that the buyer tends to consider the discounts and shopping experience in both the online and offline markets before making the final decision of purchasing the product. An increase in price in one segment can make the buyer shift towards the other segment. Therefore, CCI held that offline and online markets are not two different relevant markets since they are only different in their channels of distribution.
And the same has been stated in the cases such as In Re: Confederation of Real Estates Brokers Association of India (2016); In Re: Jasper Infotech Private limited (Snapdeal case) (2014); and In Re: Deepak Verma (2016) that “e-commerce platforms have an alternate distribution channel and they are not a separate relevant market.” In the light of aforesaid decisions, CCI has held that since these platforms are not in a dominant position in the relevant market, therefore they are not abusing its dominant position which is in contravention to Section 4 of the Competition Act, 2002.
However, in the aforementioned rulings of CCI, it is not considering that the e-commerce platforms have access to “big data” which gives them a competitive edge in the market. Pertinently, the offline platforms can suffer in the given relevant market, since they do not have access to such data.
In Re: Samir Agrawal (2018) wherein Uber India was an opposite party, CCI dealt with the circumstances pertaining to the cab aggregators model. The CCI acknowledged the fact that estimation of fare is done by algorithm on the basis of large sets of big data. These sets of big data include the rider’s personal information, traffic situation, demand-supply situation etc. Therefore, algorithmically determined pricing for each rider is different considering these large data sets.
In Re: Matrimony.com Limited (2012) the CCI held that Google LLC is abusing its dominant position in “online general search advertising market in India”. It was stated that Google was in a position wherein it can control the algorithm which was pivotal for generating the search results. Thus, such an algorithm was capable of intervening in the automated process and affecting the ranking and relevance of the results.
This resulted in search bias wherein equally efficient websites search service providers were not able to acquire large amounts of business like Google, and this eventually led to foreclosure in the market.
Mergers & Acquisitions
As per Section 5 of the Competition Act, 2002 if at all the parties to the combination want to consummate with the transaction for a combination (i.e. merger/acquisition/amalgamation), they need prior approval from the CCI. In order to determine the validity of the combination, CCI takes into consideration the values of assets and turnover. However, per the De Minimis exemption when the assets and turnover of an organization are less than 350 Crores and 1000 crores respectively, then prior approval of CCI is not required.
When an enterprise possesses ‘Big data’ it has a potential to cause adverse effects in the market. Pertinently, when Facebook acquired Whatsapp it affected about 1.7 billion users in the world, however, such a combination didn’t come under the scrutiny of CCI as the merger control thresholds as per Section 5 of the act was not met. This happened because the exemption only assesses the value pertaining to the value of assets and turnover and not the possession of ‘Big Data’ by the enterprise.
Section 3 of the Competition Act, 2002 prohibits agreements which tend to cause an appreciable adverse effect in the market. The e-commerce (hosts) platforms use algorithms on the basis of big data for promoting the sellers online. Section 3 of the act is premised on the agreement in any form; it can be contractual, non-contractual, oral etc. Generally, the contracts entered between such platforms are confidential and are inaccessible.
The terms of these contracts could be vague as it allows hosts to modify, delete, add any list of sellers or functionalities on the website. Moreover, it is the sole discretion of the sellers to determine the appearance, design, and content of the site. Therefore, it can be stated that such an agreement can be challenged by virtue of Section 3(4)-resale price maintenance or Section 3(1) of the Act independently.
Furthermore, Section 19(3) talks about the factors pertaining to the anti-competitive agreements such as the creation of barriers or foreclosure of the competition by hindering market entry. Evidently, a market can be foreclosed for the competitors if the parties to the agreement hold substantial market power. In the category of decisions by the various antitrust regulators worldwide, it has been stated that market power also contains “big data”. Thus the assessment of these factors must be in accordance with the facts and circumstances of the case.
Moreover, in order to check the possibility of an appreciable adverse effect on the competition (AAEC), the CCI considers the existence of vertical agreements or horizontal agreements between the enterprises. However, enterprises which are not related horizontally and vertically and are in possession of ‘big data’ can give rise to anti-competitive practices by causing AAEC in the market.
Big data has the potential to raise major antitrust concerns. All the anti-trust/competition regulators are keeping a close eye across the world to investigate the usage of big data by the enterprises. Therefore, it won’t be surprising to see revised policies and amendments in the merger control regimes.
The possession of Big Data which contains artificial intelligence lead algorithms and large chunks of user’s information has the potential to cause adverse effects in the market. The Indian competition regime is unable to deal with the issues of Big Data, as the De minimis exemption only asks enterprises with sufficient assets and turnover to notify and not the enterprises which are in possession of big data. Therefore, it would be reasonable to amend the law considering the importance of Big Data.
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