Direct Consumer Influence—The Missing Strategy to Integrate Data Privacy Preferences into the Market

Abstract

In view of a growing number of competition law investigations into the gathering and use of personal data by digital platforms, this article discusses the extent to which consumer sovereignty can be given greater weight in concentrated marketplaces where firms employ multi-sided business models and compete along quality dimensions such as privacy rather than price. The article explores the concept of direct consumer influence as a novel approach vis-a-vis switching or choosing differently in the public enforcement of competition law. Direct consumer influence constitutes a distinct avenue for embedding consumers’ choices into the market when consumers have few possibilities to act and holds the potential to shape digital markets in unanticipated ways. Using the example of the German Federal Cartel Office’s investigation into Facebook’s data-gathering practices, the article illustrates how direct consumer influence may clarify the relationship between data protection, consumer rights, and competition law.