Can Competition Protect Privacy? An Analysis Based on the German Facebook Case

Abstract

The increasing collection of personal data by online platforms causes concerns among regulators and consumers. Due to privacy-related market failures in multi-sided markets, the question of possible remedies arises. This article aims to determine if a contribution of competition law is needed to enhance data protection rules. The first part will discuss the possible types of datarelated abuses of dominance in the context of the pioneering attempt of the German competition authority. The second part will analyse the drawbacks of the German Facebook case and possibilities to reconcile it with EU competition law. In addition, the article will analyse other ways to tackle privacy issues, including the proposal for a Digital Markets Act (DMA). It is suggested that an intervention of competition law in data protection matters is unnecessary. We argue that it may prevent the emergence of innovative products and services, ultimately harm consumer welfare and competition, as well as put an undue burden on dominant undertakings. It is submitted that a coherent regulation allowing for legal certainty could serve the objective of consumer welfare while preserving the interests of undertakings. Article 102 TFEU, data protection law, personal data, privacy, GDPR, exploitative abuse, unfair trading conditions, German competition law, Digital Markets Act, exclusionary abuse, Facebook case