Reinforcing data protection and competition through art. 6(2) of the Digital Markets Act

With the Digital Markets Act (DMA) the European Union has taken significant steps in the regulation of large digital market ecosystems. Data protection and competition law are becoming increasingly intertwined, and the DMA’s goals are tightly aligned with them. However, the provision explicitly intended to address the use (and cross-use) of data within gatekeepers’ ecosystems leaves much to be desired. Art. 5(2) DMA offers no substantive new obligations over the established GDPR system, especially in light of the ECJ’s judgement in Meta v. Bundeskartellamt. Furthermore, the consent exception on which it relies leaves a distinct risk of anti-competitive effects and decreasing privacy as a result of information asymmetries and the powerful market position of gatekeepers. However, art. 6(2) DMA also restricts gatekeepers’ ability to use data, if it was received through gatekeepers’ business users. The protective value of the DMA can be significantly increased if the European Commission adopts broad interpretations of when data is used “in competition with business users”, when it is “collected through commercial activities of business users or their customers” and when it is obtained “on the relevant core platform services or on services provided together with, or in support of, the relevant core platform services of the gatekeeper”. Doing so would conform to the interconnected nature of ecosystems’ data collection practices and their competitive position, and it would bolster the Commission’s ability to act against both the anti-competitive effects and potential privacy infringements of data pooling, above and beyond what art. 5(2) DMA offers.