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BalajiVenkatakrishnanFirstEssay 10 - 03 Jan 2020 - Main.BalajiVenkatakrishnan
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Combatting the Big Data Conundrum using Antitrust Law | | |
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< | Digitalization and data analytics have transcended the traditional understanding of markets and their regulation. Data has become crucial to gain efficiencies, but has also been used to gain competitive advantages and market power. The latter could result in competition foreclosure, exclusionary practices, and anti-consumer effects. In fact, 79.4% of participants in a survey feared displacement by competitors with data cultures. This is concerning for two reasons - (1) big data capitalism is dominated by few companies like Facebook and Google, and this could result in the big getting bigger; and (2) legislatures around the world are struggling to devise regulations vis-a-vis data, given its overarching effect on society, and the economy. Despite this, the European Commission (EC) and the German Federal Cartel Office (FCO) have used antitrust law to regulate the impact of data on not just competition, but also consumers' data rights. | >
> | The objective of this paper is to urge India's nascent Competition Commission (CCI) to learn from the European Commission (EC) and German Federal Cartel Office (FCO) about the significant value of antitrust law as a means to combat the omnipresent concerns posed by big data.
This is of extreme importance, given that digitalization and data analytics have transcended the traditional understanding of markets and their regulation such that, data is being used to gain competitive advantages and market power, which in turn causes competition foreclosure, exclusionary practices, and anti-consumer effects. In fact, 79.4% of participants in a survey feared displacement by competitors with data cultures. This is concerning for two reasons - (1) big data capitalism is dominated by few companies like Facebook and Google, and this could result in the big getting bigger; and (2) legislatures around the world are struggling to devise regulations vis-a-vis data, given its overarching effect on society, and the economy.
Accordingly, I will first highlight important instances where the EC and FCO have used antitrust law to regulate the impact of data on not just competition, but also consumers' data rights. Thereafter, basis these global experiences, I offer certain recommendations to the nascent Indian antitrust regime in the hope that it could result in efficient and holistic progress. | | |
I'm not sure why "Despite this." The paragraph is rich in information, but it does not make its argument clearly.
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< | In this brief paper, I highlight important instances of such regulation, and argue that regulators must embrace enforcing antitrust law to regulate data. Lastly, given that India's antitrust regime is nascent, I provide some recommendations based on global experiences. | | |
This clarifies that the draft is a sales pitch for a product: "Antitrust law—You need it to regulate your country's part of the global data economy." I think you would be more effective putting it right at the top and then launching into the information about why your solution is needed to solve a problem your information defines.
| | | India’s unbridled focus on digitalizing its economy has outpaced its legal regime. A comprehensive law on data protection was proposed only in 2018, the right to privacy was not recognized as fundamental until 2017, and India’s antitrust merger law was given effect only in 2011. Consequently, companies have unsurprisingly seized data-related opportunities to gain advantages. Illustratively, in 2014, a competitor acquisition by India’s leading cab aggregator aimed at gaining an advantage over Uber was not notified to the competition regulator, as the transaction did not exceed merger thresholds. Additionally, an abuse of dominance complaint against WhatsApp? for revising its terms to permit sharing of its user data with Facebook was dismissed.
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< | Thus, it is imperative for India to retool its existing antitrust regime to begin tackling the data conundrum.. Firstly, India must amend its antitrust merger law to account for transaction value, as this will enable detection of digital transactions. Additionally, despite the lack of data protection laws, the regulator could consider consumers’ privacy-concerns under the garb of quality competition, and in the context of network effects. Lastly, India must consider establishing a committee of competition, data and privacy experts with comparative knowledge, to help educate and aid the regulator with this emerging challenge. | >
> | To that extent, it is apparent that the CCI is somewhat behind in understanding the significant role that antitrust law can play in regulating the impact of data (as evidenced in the above section). This is not to say that antitrust law is the only solution to combatting this conundrum. Rather, my argument is that, at present, antitrust law is an already existing and develop(ed)ing body of law that can be employed to tackle the conundrum, while suitable data protection laws are developed per global best practices. Accordingly, I urge the CCI to retool its interpretation of the existing antitrust regime to consider consumers' privacy concerns under the garb of quality competition, and in the context of network effects. In my view, this could be a good and easy to implement first step, given that the CCI has already disregarded the "free" aspect of multisided markets, as consumers offer their data in exchange for the "free" service. Further, to whatever extend possible, I propose that India's antitrust merger law be amended to account for transaction value, as this could allow for better scrutiny of data-relater or technology based mergers and acquisitions. Considering that this may be a tall order, I alternatively suggest that the thresholds associated with deal notification exemptions be made an "and" requirement instead of an "or" requirement, and/or that the these threshold numbers be reduced. That is, presently, the CCI exempts notification of mergers/acquisitions where the target company has assets and a turnover of less than Indian Rupees 3.5 billion or 10 billion respectively. If the requirements vis-a-vis this exemption are qualified by an "and" rather than "or", then it is possible that Facebook's acquisition of WhatApp? (which was not noticed to the CCI), and like transactions become notifiable. In my opinion, such an amendment would not pose too many difficulties, and would allow the CCI to - (1) be more vigilant; and (2) better use antitrust law to combat the big data conundrum. | | |
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Bala Note to Prof. Moglen - I completely understand the concerns you have pointed out vide the comment above. However, I would think that the recommendations posed above do not pose concerns to extent that you have pointed out. I say this only because, the Indian competition regulator has already been active in making necessary amendments vis-a-vis technology mergers and acquisitions. For instance, a recent amendment was made to provide effect to a green channel filing for simple mergers. At the same time, prior to my enrollment in Columbia, we had suggested amending merger control laws to reflect transaction value, or alternatively revise the existing merger thresholds to lower numbers so that tech acquisitions can come within the fold of the commission's jurisdictions. This was received with great interest, and is still being discussed.
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BalajiVenkatakrishnanFirstEssay 9 - 18 Nov 2019 - Main.EbenMoglen
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Combatting the Big Data Conundrum using Antitrust Law | | |
Digitalization and data analytics have transcended the traditional understanding of markets and their regulation. Data has become crucial to gain efficiencies, but has also been used to gain competitive advantages and market power. The latter could result in competition foreclosure, exclusionary practices, and anti-consumer effects. In fact, 79.4% of participants in a survey feared displacement by competitors with data cultures. This is concerning for two reasons - (1) big data capitalism is dominated by few companies like Facebook and Google, and this could result in the big getting bigger; and (2) legislatures around the world are struggling to devise regulations vis-a-vis data, given its overarching effect on society, and the economy. Despite this, the European Commission (EC) and the German Federal Cartel Office (FCO) have used antitrust law to regulate the impact of data on not just competition, but also consumers' data rights. | |
>
> |
I'm not sure why "Despite this." The paragraph is rich in information, but it does not make its argument clearly.
| | | In this brief paper, I highlight important instances of such regulation, and argue that regulators must embrace enforcing antitrust law to regulate data. Lastly, given that India's antitrust regime is nascent, I provide some recommendations based on global experiences. | |
>
> |
This clarifies that the draft is a sales pitch for a product: "Antitrust law—You need it to regulate your country's part of the global data economy." I think you would be more effective putting it right at the top and then launching into the information about why your solution is needed to solve a problem your information defines.
| | | Global Experiences
Regulators struggle balancing the pro-competitive effects and anti-competitive conduct arising from the use of data, as they are traditionally price-centric in evaluating markets while data is difficult to value. However, increasing number of data-related transactions have made regulators deviate from conventional methods. In 2014, the EC analyzed whether Facebook could use WhatsApp? as a data source to augment its position in advertising (post-acquisition) and noted an absence of competition concerns, as Google dominated data collection. This recognized the possibility of defining data-based markets, but also had some limitations. For instance, it assumed Google and Facebook's data to be substitutable, which is erroneous, as Google would use its data in different ways from Facebook. Additionally, the analysis ignored the consumers’ privacy concerns post-acquisition. | | |
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In the end, this argument requires an existing weak area of law to
become strong enough to replace other legal structures that the
current government could enact if it wanted to. That would require
judges to be willing to construct that regime out of competition law
through the rapid evolution of competition doctrine—which not
even your European courts, as opposed to government administrative
agencies—have done. They would have to do so under the
indifferent or hostile pressure of the government, whose
administration will not take the courts' positions for them. This
is, to say the least, a tall order. The reader might reasonably
want to know what's Plan B?
Perhaps the draft was too committed to selling the virtues of
antitrust law as a solution to the platform company problem.
"Competition law will be an important component of platform company
regulation" would be a more open-ended premise that would still have
value—as the discussion at my SFLC/CLS conference was intended
to show. If your framework question didn't imply such a strong
downstream form of argument, your draft's analysis might improve.
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BalajiVenkatakrishnanFirstEssay 8 - 10 Oct 2019 - Main.BalajiVenkatakrishnan
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< | Combatting the Big Data Conundrum using Antitrust Laws | >
> | Combatting the Big Data Conundrum using Antitrust Law | | | -- By BalajiVenkatakrishnan - 07 Oct 2019 | |
<
< | The advent of digitalization and data analytics has transcended the traditional understanding of markets and their regulation. Data-driven business models have become crucial to gain efficiencies, and create customer benefits, but have also been deployed to gain competitive advantages and market power. The latter could result in competition foreclosure, exclusionary practices, and other anti-consumer effects. In fact, 79.4% of participants in a survey feared displacement by competitors with ‘data cultures’. This is concerning for two broad reasons - (1) the game of big data capitalism is dominated only by few companies like Facebook and Google; and (2) legislatures around the world are struggling to devise comprehensive regulations vis-a-vis data, given its overarching effect on every stakeholder in society, and the economy. Despite this, the European Commission (EC) and the German Federal Cartel Office (FCO) have used antitrust law to regulate the impact of data-driven businesses on not just competition, but also consumers' privacy and data rights. In this brief paper, I attempt to highlight important instances of such regulation, and thereafter argue that regulators must embrace enforcing antitrust law to assess the impact of data, as opposed to waiting for comprehensive legislation. Lastly, given that India's antitrust regime is nascent, I provide some recommendations to its existing regime based on global experiences. | | | | |
<
< | Global Experiences - Using Antitrust to Regulate Data | >
> |
Digitalization and data analytics have transcended the traditional understanding of markets and their regulation. Data has become crucial to gain efficiencies, but has also been used to gain competitive advantages and market power. The latter could result in competition foreclosure, exclusionary practices, and anti-consumer effects. In fact, 79.4% of participants in a survey feared displacement by competitors with data cultures. This is concerning for two reasons - (1) big data capitalism is dominated by few companies like Facebook and Google, and this could result in the big getting bigger; and (2) legislatures around the world are struggling to devise regulations vis-a-vis data, given its overarching effect on society, and the economy. Despite this, the European Commission (EC) and the German Federal Cartel Office (FCO) have used antitrust law to regulate the impact of data on not just competition, but also consumers' data rights. | | | | |
<
< | Regulators struggle balancing the pro-competitive effects and anti-competitive conduct arising from the use of data, as they are traditionally price-centric in evaluating markets while data is difficult to value. However, increasing number of data-related transactions have made regulators deviate from conventional methods to ensure data’s minimal impact on competition. For instance, in 2014, the EC analyzed whether Facebook could use WhatsApp? as a data source to augment its position in advertising (post-acquisition) and noted an absence of competition concerns, as Google dominated data collection. This was a significant development, as it recognized the possibility of defining markets solely based on data. Nevertheless, the EC's conclusion had some drawbacks. For instance, it assumed Google's data to be substitutable with Facebook's data. This seems erroneous, as Google would most definitely use its data in ways different from Facebook. Additionally, the analysis was limited, as it ignored the privacy-concerns that consumers could experience on account of the acquisition. | >
> | In this brief paper, I highlight important instances of such regulation, and argue that regulators must embrace enforcing antitrust law to regulate data. Lastly, given that India's antitrust regime is nascent, I provide some recommendations based on global experiences. | | | | |
<
< | This latter concern regarding consumers' privacy was later resolved in the EC's analysis of Microsoft's acquisition of LinkedIn? . Specifically, the EC recognized that, Microsoft’s intention to integrate LinkedIn? into its products (post-acquisition) could - (1) result in severe data-related network effects, which could foreclose competition and create entry barriers in the professional social networking market; and (2) reduce consumers' privacy-protection. Consequently, the EC approved the transaction only after Microsoft offered behavioural commitments addressing these concerns. | >
> | Global Experiences | | | | |
<
< | Further, Germany and Austria amended their antitrust merger law to detect acquisitions of companies (with low assets and turnovers) in the digital sector, by requiring notification of transactions based on value. A similar amendment is being considered across the European Union (EU). Prior to the amendment, potential acquisitions or mergers were vetted only based on asset and turnover numbers. Consequently, the amendment is a significant development, as it indicates that legislatures are also becoming hyper aware of the possibility of technology giants getting bigger through the acquisition of other data-driven startups and businesses, which generally tend to have limited assets and turnover, thereby circumventing competition regulators' jurisdiction. From a legislative standpoint, this could be a very good first step in reigning in the impact of data using antitrust law, while contemplation ensues on comprehensive regulations. | >
> | Regulators struggle balancing the pro-competitive effects and anti-competitive conduct arising from the use of data, as they are traditionally price-centric in evaluating markets while data is difficult to value. However, increasing number of data-related transactions have made regulators deviate from conventional methods. In 2014, the EC analyzed whether Facebook could use WhatsApp? as a data source to augment its position in advertising (post-acquisition) and noted an absence of competition concerns, as Google dominated data collection. This recognized the possibility of defining data-based markets, but also had some limitations. For instance, it assumed Google and Facebook's data to be substitutable, which is erroneous, as Google would use its data in different ways from Facebook. Additionally, the analysis ignored the consumers’ privacy concerns post-acquisition. | | | | |
<
< | In 2017, privacy-related concerns in antitrust received renewed attention from the FCO. This was extremely significant, as the FCO was not posed with a merger analysis, but was required to examine a potential abuse of dominance by Facebook. The FCO preliminary assessed Facebook’s practice of merging data generated through Facebook users’ use of third-party applications (like Instagram, WhatsApp? , and embedded applications on Facebook) with their respective Facebook user accounts to be an abuse of dominance. It stated that users could not have effectively consented to this practice, given Facebook’s dominance, and even viewed this as a potential data protection violation. In February 2019, the FCO, in line with its preliminary assessment, _issued a prohibition order against Facebook_ for abusing its dominant position. In its order, the FCO explicitly held that Facebook used its dominance to impose a data processing policy that consumers could not have effectively consented to. More importantly, the FCO consulted with several data protection authorities, and assumed jurisdiction over enforcing aspects of the EU's General Data Protection Regulations (GDPR), and held that Facebook also violated the GDPR. Presently, Facebook has moved to appeal this case. | >
> | The latter concern regarding consumers' privacy was later addressed in the Microsoft/LinkedIn analysis. The EC recognized that, Microsoft’s intention to integrate LinkedIn? into its products (post-acquisition) could not only result in severe data-related network effects, but could also reduce consumers' privacy-protection. Consequently, the EC approved the transaction only after Microsoft offered behavioral commitments addressing these concerns. | | | | |
<
< | Compared to such experiences in the EU, U.S.A. has generally refrained from commenting on data-related transactions. However, in 2014, the Department of Justice successfully challenged a consummated merger between two online ratings and reviews platforms, on grounds that it could result in severe data-related network effects, creating unscalable entry barriers and increased switching costs. Consequently, the acquirer was made to divest the target’s assets to restore competition. Presently, using antitrust law to enforce such divesture on technology giants like Facebook has garnered renewed attention vide Ms. Elizabeth Warren's presidential campaign. | >
> | Further, Germany and Austria amended their antitrust law to detect acquisitions of companies (with low turnovers) in the digital sector, by requiring notification of transactions based on value. Prior to the amendment, transactions were vetted based on assets and turnover. This resulted in technology-based transactions circumventing the regulator’s jurisdiction, as businesses were generally acquired for significant consideration in their nascent stages when they had limited assets and turnover. Consequently, the amendment is significant, as it indicates that legislatures are also becoming hyper aware of the technology giants getting bigger. | | | | |
<
< | In light of the preceding discussion, it is evident that antitrust law can and has been used to regulate data related concerns, including consumers' privacy and data protection. Given the GDPR, the latter must not be considered as only viable in the EU. This is because, even prior to the FCO's enforcement of the GDPR, the EC acknowledged privacy-concerns to be part of competition issues in the Microsoft/LinkedIn case. Consequently, it is imperative that regulators across the world use antitrust law to regulate data. This is pertinent, as legislative and long-term solutions to the data conundrum are truthfully difficult to evaluate, as the threat model is not only subject to continuous evolution, but also has an overarching impact radius that is difficult to account for comprehensively. Until this innovation has been devised, it is evident that antitrust law is the global vehicle to address this issue, before world economies cannot keep up with and loose sight of the curve. | >
> | In February 2019, the FCO, in an unprecedented decision, used antitrust law as the base to drive home the importance of protecting consumers’ privacy concerns. The FCO held that Facebook abused its dominance vide its data processing policy, which authorized its practice of merging data generated through Facebook users’ use of third-party applications (like Instagram, WhatsApp? , and embedded applications on Facebook) with their respective Facebook user accounts. The FCO held that, given Facebook’s dominance, consumers could not have effectively consented to such a policy. More importantly, the FCO consulted with several data protection authorities, and also assumed jurisdiction over enforcing the European Union’s (EU) General Data Protection Regulations (GDPR), and held that Facebook also violated the GDPR. Presently, Facebook has appealed this case. | | | | |
<
< | Lessons for India & Conclusion | >
> | Compared to such experiences in the EU, U.S.A. has generally refrained from commenting on data-related transactions. However, in 2014, the Department of Justice successfully challenged a consummated merger between two online ratings platforms, on grounds that it could result in severe data-related network effects. Consequently, the acquirer was made to divest the target’s assets to restore competition. Presently, using antitrust law to enforce such divesture on technology giants like Facebook has garnered renewed attention vide Ms. Elizabeth Warren's presidential campaign. | | | | |
<
< | Compared to global experiences, India’s unbridled focus on digitalizing its economy has outpaced its legal regime. A comprehensive law on data protection was proposed only in 2018, the right to privacy was not recognized as fundamental until 2017, and even India’s antitrust merger law was given effect only in 2011. Given that antitrust law (the suggested medium to regulate data) in itself is nascent in India, companies have unsurprisingly seized data-related opportunities to gain advantages. Illustratively, in 2014, a competitor acquisition by India’s leading cab aggregator aimed at gaining an advantage over Uber was not notified to the competition regulator, as the transaction did not exceed merger thresholds. Additionally, an abuse of dominance complaint against WhatsApp? for revising its terms to permit sharing of its user data with Facebook was dismissed. In contrast, and as discussed above, the FCO has held Facebook to have abused its dominant position, and to have the GDPR in relation to a similar complaint. | >
> | In light of the preceding discussion, it is evident that antitrust law can and has been used to regulate data’s impact, including consumers' privacy protection. Given the GDPR, the latter must not be considered as only viable in the EU. This is because, even prior to the FCO's enforcement of the GDPR, the EC acknowledged privacy-concerns to be part of competition issues in the Microsoft/LinkedIn case. Consequently, it is imperative that regulators across the world use antitrust law to regulate data. This is pertinent, as legislative solutions to the data conundrum are truthfully difficult to evaluate, as the threat model is not only subject to continuous evolution, but also has an overarching impact radius that is difficult assess. Consequently, while comprehensive legislation is being devised, antitrust law must be enforced to ensure that big companies don't get bigger.
Lessons for India
India’s unbridled focus on digitalizing its economy has outpaced its legal regime. A comprehensive law on data protection was proposed only in 2018, the right to privacy was not recognized as fundamental until 2017, and India’s antitrust merger law was given effect only in 2011. Consequently, companies have unsurprisingly seized data-related opportunities to gain advantages. Illustratively, in 2014, a competitor acquisition by India’s leading cab aggregator aimed at gaining an advantage over Uber was not notified to the competition regulator, as the transaction did not exceed merger thresholds. Additionally, an abuse of dominance complaint against WhatsApp? for revising its terms to permit sharing of its user data with Facebook was dismissed.
Thus, it is imperative for India to retool its existing antitrust regime to begin tackling the data conundrum.. Firstly, India must amend its antitrust merger law to account for transaction value, as this will enable detection of digital transactions. Additionally, despite the lack of data protection laws, the regulator could consider consumers’ privacy-concerns under the garb of quality competition, and in the context of network effects. Lastly, India must consider establishing a committee of competition, data and privacy experts with comparative knowledge, to help educate and aid the regulator with this emerging challenge.
| | | | |
<
< | Thus, it is imperative for India to retool its existing antitrust regime to tackle the data conundrum, while contemplation on comprehensive legislation ensues. Firstly, India must amend its merger thresholds to account for transaction value to be able to detect digital transactions (like Germany). Additionally, despite the lack of data protection laws, the regulator could consider consumers’ privacy-concerns under the garb of quality competition while evaluating transactions that could create network effects or entry barriers. Lastly, India must consider establishing a committee of competition, data and privacy experts with comparative knowledge, to help educate and aid the antitrust regulator on issues involving an intersection of these concepts. While these recommendations are specifically directed towards India, countries with a similar lack of experience could also consider implementing them, as antitrust law seems the only viable modus to effectively deal with the data conundrum at present. |
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BalajiVenkatakrishnanFirstEssay 7 - 09 Oct 2019 - Main.BalajiVenkatakrishnan
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Combatting the Big Data Conundrum using Antitrust Laws
-- By BalajiVenkatakrishnan - 07 Oct 2019 | |
<
< | The advent of digitalization and data analytics has transcended the traditional understanding of markets and their regulation. Data-driven business models have become crucial to gain efficiencies, and create customer benefits, but have also been deployed to gain competitive advantages and market power. The latter could result in competition foreclosure, exclusionary practices, and other anti-consumer effects. In fact, 79.4% of participants in a survey feared displacement by competitors with ‘data cultures’. This is concerning for two broad reasons - (1) the game of big data capitalism is dominated only by few companies like Facebook and Google; and (2) legislatures around the world are struggling to devise comprehensive regulations vis-a-vis data, given its overarching effect on every stakeholder in society, and the economy. Despite this, regulators like the European Commission (EC) and the German Federal Cartel Office (FCO) have used antitrust laws to regulate the impact of data-driven businesses on not only competition, but also consumers' privacy and data protection rights. In this brief paper, I attempt to highlight important instances of such regulation, and thereafter argue that competition regulators must embrace enforcing antitrust laws to regulate the impact of data, as opposed to waiting for comprehensive regulations. Lastly, based on global experiences in regulating data using antitrust laws, I aim to provide some recommendations to the Indian competition regulator. | >
> | The advent of digitalization and data analytics has transcended the traditional understanding of markets and their regulation. Data-driven business models have become crucial to gain efficiencies, and create customer benefits, but have also been deployed to gain competitive advantages and market power. The latter could result in competition foreclosure, exclusionary practices, and other anti-consumer effects. In fact, 79.4% of participants in a survey feared displacement by competitors with ‘data cultures’. This is concerning for two broad reasons - (1) the game of big data capitalism is dominated only by few companies like Facebook and Google; and (2) legislatures around the world are struggling to devise comprehensive regulations vis-a-vis data, given its overarching effect on every stakeholder in society, and the economy. Despite this, the European Commission (EC) and the German Federal Cartel Office (FCO) have used antitrust law to regulate the impact of data-driven businesses on not just competition, but also consumers' privacy and data rights. In this brief paper, I attempt to highlight important instances of such regulation, and thereafter argue that regulators must embrace enforcing antitrust law to assess the impact of data, as opposed to waiting for comprehensive legislation. Lastly, given that India's antitrust regime is nascent, I provide some recommendations to its existing regime based on global experiences. | | | Global Experiences - Using Antitrust to Regulate Data | |
<
< | Regulators struggle balancing the pro-competitive effects and anti-competitive conduct arising from the use of data, as they are traditionally price-centric in evaluating markets while data is difficult to value. However, increasing number of data-related transactions have made regulators deviate from conventional methods to ensure data’s minimal impact on competition. For instance, in 2014, the EC analyzed whether Facebook could use WhatsApp? as a data source to augment its position in advertising (post-acquisition) and noted an absence of competition concerns, as Google dominated data collection. This recognized the possibility of defining markets solely based on data, and potentially set the stage for enforcing antitrust laws to regulate data related concerns. Nevertheless, the EC's conclusion had some drawbacks. For instance, it assumed Google's data to be substitutable with Facebook's data. This seems erroneous, as Google would most definitely use its data in ways different from Facebook. Additionally, the analysis was limited, as it ignored the privacy-concerns that consumers could experience on account of the acquisition. | >
> | Regulators struggle balancing the pro-competitive effects and anti-competitive conduct arising from the use of data, as they are traditionally price-centric in evaluating markets while data is difficult to value. However, increasing number of data-related transactions have made regulators deviate from conventional methods to ensure data’s minimal impact on competition. For instance, in 2014, the EC analyzed whether Facebook could use WhatsApp? as a data source to augment its position in advertising (post-acquisition) and noted an absence of competition concerns, as Google dominated data collection. This was a significant development, as it recognized the possibility of defining markets solely based on data. Nevertheless, the EC's conclusion had some drawbacks. For instance, it assumed Google's data to be substitutable with Facebook's data. This seems erroneous, as Google would most definitely use its data in ways different from Facebook. Additionally, the analysis was limited, as it ignored the privacy-concerns that consumers could experience on account of the acquisition. | | | | |
<
< | This latter concern regarding consumers' privacy was later resolved in the EC's analysis of Microsoft's acquisition of LinkedIn? . Specifically, the EC recognized that, Microsoft’s intention to integrate LinkedIn? into its products (post-acquisition) could - (1) result in severe data-related network effects, which could foreclose competition and create entry barriers in the professional social networking market; and (2) reduce consumers' privacy-protection. Consequently, the EC approved the transaction _only after_ Microsoft offered behavioural commitments addressing these concerns. | >
> | This latter concern regarding consumers' privacy was later resolved in the EC's analysis of Microsoft's acquisition of LinkedIn? . Specifically, the EC recognized that, Microsoft’s intention to integrate LinkedIn? into its products (post-acquisition) could - (1) result in severe data-related network effects, which could foreclose competition and create entry barriers in the professional social networking market; and (2) reduce consumers' privacy-protection. Consequently, the EC approved the transaction only after Microsoft offered behavioural commitments addressing these concerns. | | | | |
<
< | Further, Germany and Austria also amended their antitrust merger law to detect acquisitions of companies (with low turnovers) in the digital sector, by requiring notification of transactions based on value. A similar amendment is being considered across the European Union (EU). | >
> | Further, Germany and Austria amended their antitrust merger law to detect acquisitions of companies (with low assets and turnovers) in the digital sector, by requiring notification of transactions based on value. A similar amendment is being considered across the European Union (EU). Prior to the amendment, potential acquisitions or mergers were vetted only based on asset and turnover numbers. Consequently, the amendment is a significant development, as it indicates that legislatures are also becoming hyper aware of the possibility of technology giants getting bigger through the acquisition of other data-driven startups and businesses, which generally tend to have limited assets and turnover, thereby circumventing competition regulators' jurisdiction. From a legislative standpoint, this could be a very good first step in reigning in the impact of data using antitrust law, while contemplation ensues on comprehensive regulations. | | | In 2017, privacy-related concerns in antitrust received renewed attention from the FCO. This was extremely significant, as the FCO was not posed with a merger analysis, but was required to examine a potential abuse of dominance by Facebook. The FCO preliminary assessed Facebook’s practice of merging data generated through Facebook users’ use of third-party applications (like Instagram, WhatsApp? , and embedded applications on Facebook) with their respective Facebook user accounts to be an abuse of dominance. It stated that users could not have effectively consented to this practice, given Facebook’s dominance, and even viewed this as a potential data protection violation. In February 2019, the FCO, in line with its preliminary assessment, _issued a prohibition order against Facebook_ for abusing its dominant position. In its order, the FCO explicitly held that Facebook used its dominance to impose a data processing policy that consumers could not have effectively consented to. More importantly, the FCO consulted with several data protection authorities, and assumed jurisdiction over enforcing aspects of the EU's General Data Protection Regulations (GDPR), and held that Facebook also violated the GDPR. Presently, Facebook has moved to appeal this case. | |
<
< | Compared to such experiences in the EU, U.S.A. has generally refrained from commenting on data-related transactions. However, in 2014, the Department of Justice successfully challenged a consummated merger between two online ratings and reviews platforms, on grounds that it could result in severe data-related network effects, creating unscalable entry barriers and increased switching costs. Consequently, the acquirer was made to divest the target’s assets to restore competition. | >
> | Compared to such experiences in the EU, U.S.A. has generally refrained from commenting on data-related transactions. However, in 2014, the Department of Justice successfully challenged a consummated merger between two online ratings and reviews platforms, on grounds that it could result in severe data-related network effects, creating unscalable entry barriers and increased switching costs. Consequently, the acquirer was made to divest the target’s assets to restore competition. Presently, using antitrust law to enforce such divesture on technology giants like Facebook has garnered renewed attention vide Ms. Elizabeth Warren's presidential campaign. | | | | |
<
< | On account of the preceding discussion, it is evident that antitrust law can be used to regulate data related concerns, including consumers' privacy and data protection. Given the GDPR, the latter must not be considered as only viable in the EU. This is because, even prior to the FCO's enforcement of the GDPR, the EC acknowledged privacy-concerns to be part of competition issues in the Microsoft/LinkedIn case. Consequently, it is imperative that competition regulators across the world commence using antitrust law to regulate data. This is pertinent, as legislative and long-term solutions to the data conundrum are truthfully difficult to evaluate, as the threat model is not only subject to continuous evolution, but also has an overarching impact radius that is difficult to account for comprehensively. Until this innovation has been devised, it is evident that antitrust law is the global vehicle to address this issue, before world economies lose sight of the curve. | >
> | In light of the preceding discussion, it is evident that antitrust law can and has been used to regulate data related concerns, including consumers' privacy and data protection. Given the GDPR, the latter must not be considered as only viable in the EU. This is because, even prior to the FCO's enforcement of the GDPR, the EC acknowledged privacy-concerns to be part of competition issues in the Microsoft/LinkedIn case. Consequently, it is imperative that regulators across the world use antitrust law to regulate data. This is pertinent, as legislative and long-term solutions to the data conundrum are truthfully difficult to evaluate, as the threat model is not only subject to continuous evolution, but also has an overarching impact radius that is difficult to account for comprehensively. Until this innovation has been devised, it is evident that antitrust law is the global vehicle to address this issue, before world economies cannot keep up with and loose sight of the curve. | | | | |
<
< | Lessons for India | >
> | Lessons for India & Conclusion | | | | |
<
< | Compared to global experiences, India’s unbridled focus on digitalizing its economy has outpaced its legal regime, where a comprehensive law on data protection was proposed only in 2018, the right to privacy was not recognized as fundamental until 2017, and India’s merger control regime was given effect only in 2011. In this scenario, companies have unsurprisingly looked to seize data-related opportunities and exploit the legal vacuum to gain competitive advantages. Illustratively, in 2014, a competitor acquisition by India’s leading cab aggregator aimed at gaining an advantage over Uber was not notified to the regulator, as the transaction did not exceed merger thresholds. Additionally, an abuse of dominance complaint against WhatsApp? for revising its terms to permit sharing of its user data with Facebook was dismissed. In contrast, and as discussed above, the FCO has held Facebook to have abused its dominant position, and contravened provisions of the GDPR in relation to a similar complaint. | >
> | Compared to global experiences, India’s unbridled focus on digitalizing its economy has outpaced its legal regime. A comprehensive law on data protection was proposed only in 2018, the right to privacy was not recognized as fundamental until 2017, and even India’s antitrust merger law was given effect only in 2011. Given that antitrust law (the suggested medium to regulate data) in itself is nascent in India, companies have unsurprisingly seized data-related opportunities to gain advantages. Illustratively, in 2014, a competitor acquisition by India’s leading cab aggregator aimed at gaining an advantage over Uber was not notified to the competition regulator, as the transaction did not exceed merger thresholds. Additionally, an abuse of dominance complaint against WhatsApp? for revising its terms to permit sharing of its user data with Facebook was dismissed. In contrast, and as discussed above, the FCO has held Facebook to have abused its dominant position, and to have the GDPR in relation to a similar complaint. | | | | |
<
< | Thus, there is abundant scope for India to learn from global experiences and develop a sophisticated legal framework responding to the discussed challenges. Firstly, India must amend its merger thresholds to account for transaction value to be able to detect digital transactions (like Germany). Additionally, despite the lack of data protection laws, the regulator could consider consumers’ privacy-concerns under the garb of quality competition while evaluating transactions that could create network effects or entry barriers. Lastly, India must consider establishing a committee of competition, data and privacy experts with comparative knowledge, to help educate and aid the regulator on issues involving an intersection of these concepts. | >
> | Thus, it is imperative for India to retool its existing antitrust regime to tackle the data conundrum, while contemplation on comprehensive legislation ensues. Firstly, India must amend its merger thresholds to account for transaction value to be able to detect digital transactions (like Germany). Additionally, despite the lack of data protection laws, the regulator could consider consumers’ privacy-concerns under the garb of quality competition while evaluating transactions that could create network effects or entry barriers. Lastly, India must consider establishing a committee of competition, data and privacy experts with comparative knowledge, to help educate and aid the antitrust regulator on issues involving an intersection of these concepts. While these recommendations are specifically directed towards India, countries with a similar lack of experience could also consider implementing them, as antitrust law seems the only viable modus to effectively deal with the data conundrum at present. |
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BalajiVenkatakrishnanFirstEssay 6 - 09 Oct 2019 - Main.BalajiVenkatakrishnan
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< | Antitrust as a short-term vehicle to combat the Big Data Conundrum? | >
> | Combatting the Big Data Conundrum using Antitrust Laws | | | -- By BalajiVenkatakrishnan - 07 Oct 2019 | |
<
< | The advent of digitalization and data analytics has transcended the traditional understanding of markets and their regulation. Data-driven business models have become crucial to gain efficiencies, and create customer benefits, but have also been deployed to gain competitive advantages and market power. The latter could result in competition foreclosure, exclusionary practices, and several other anti-consumer effects. In fact, 79.4% of participants in a survey feared displacement by competitors with ‘data cultures’. This is extremely concerning, as the game of big data capitalism is in any case dominated by few companies like Facebook and Google. Further, the penumbra and domino effects of data-driven technologies on the economy and every stakeholder in society has left legislatures around the world struggling to devise comprehensive regulations. | >
> | The advent of digitalization and data analytics has transcended the traditional understanding of markets and their regulation. Data-driven business models have become crucial to gain efficiencies, and create customer benefits, but have also been deployed to gain competitive advantages and market power. The latter could result in competition foreclosure, exclusionary practices, and other anti-consumer effects. In fact, 79.4% of participants in a survey feared displacement by competitors with ‘data cultures’. This is concerning for two broad reasons - (1) the game of big data capitalism is dominated only by few companies like Facebook and Google; and (2) legislatures around the world are struggling to devise comprehensive regulations vis-a-vis data, given its overarching effect on every stakeholder in society, and the economy. Despite this, regulators like the European Commission (EC) and the German Federal Cartel Office (FCO) have used antitrust laws to regulate the impact of data-driven businesses on not only competition, but also consumers' privacy and data protection rights. In this brief paper, I attempt to highlight important instances of such regulation, and thereafter argue that competition regulators must embrace enforcing antitrust laws to regulate the impact of data, as opposed to waiting for comprehensive regulations. Lastly, based on global experiences in regulating data using antitrust laws, I aim to provide some recommendations to the Indian competition regulator. | | | | |
>
> | Global Experiences - Using Antitrust to Regulate Data | | | | |
>
> | Regulators struggle balancing the pro-competitive effects and anti-competitive conduct arising from the use of data, as they are traditionally price-centric in evaluating markets while data is difficult to value. However, increasing number of data-related transactions have made regulators deviate from conventional methods to ensure data’s minimal impact on competition. For instance, in 2014, the EC analyzed whether Facebook could use WhatsApp? as a data source to augment its position in advertising (post-acquisition) and noted an absence of competition concerns, as Google dominated data collection. This recognized the possibility of defining markets solely based on data, and potentially set the stage for enforcing antitrust laws to regulate data related concerns. Nevertheless, the EC's conclusion had some drawbacks. For instance, it assumed Google's data to be substitutable with Facebook's data. This seems erroneous, as Google would most definitely use its data in ways different from Facebook. Additionally, the analysis was limited, as it ignored the privacy-concerns that consumers could experience on account of the acquisition. | | | | |
>
> | This latter concern regarding consumers' privacy was later resolved in the EC's analysis of Microsoft's acquisition of LinkedIn? . Specifically, the EC recognized that, Microsoft’s intention to integrate LinkedIn? into its products (post-acquisition) could - (1) result in severe data-related network effects, which could foreclose competition and create entry barriers in the professional social networking market; and (2) reduce consumers' privacy-protection. Consequently, the EC approved the transaction _only after_ Microsoft offered behavioural commitments addressing these concerns. | | | | |
<
< | Such concerns have prompted regulators to contemplate data’s impact on competition. However, regulators in India remain unresponsive to this emerging challenge. In this essay, I aim to identify global experiences in the competition and data intersection that may provide meaningful lessons for India. | >
> | Further, Germany and Austria also amended their antitrust merger law to detect acquisitions of companies (with low turnovers) in the digital sector, by requiring notification of transactions based on value. A similar amendment is being considered across the European Union (EU). | | | | |
<
< | Global Experiences | >
> | In 2017, privacy-related concerns in antitrust received renewed attention from the FCO. This was extremely significant, as the FCO was not posed with a merger analysis, but was required to examine a potential abuse of dominance by Facebook. The FCO preliminary assessed Facebook’s practice of merging data generated through Facebook users’ use of third-party applications (like Instagram, WhatsApp? , and embedded applications on Facebook) with their respective Facebook user accounts to be an abuse of dominance. It stated that users could not have effectively consented to this practice, given Facebook’s dominance, and even viewed this as a potential data protection violation. In February 2019, the FCO, in line with its preliminary assessment, _issued a prohibition order against Facebook_ for abusing its dominant position. In its order, the FCO explicitly held that Facebook used its dominance to impose a data processing policy that consumers could not have effectively consented to. More importantly, the FCO consulted with several data protection authorities, and assumed jurisdiction over enforcing aspects of the EU's General Data Protection Regulations (GDPR), and held that Facebook also violated the GDPR. Presently, Facebook has moved to appeal this case. | | | | |
<
< | Data analytics helps . Conversely, companies strive to acquire data to gain market power, which could foreclose competition, or lead to collusive and exclusionary practices. Thus, regulators struggle balancing pro-competitive effects and anti-competitive conduct, as they are traditionally price-centric in evaluating markets while data is difficult to value. | >
> | Compared to such experiences in the EU, U.S.A. has generally refrained from commenting on data-related transactions. However, in 2014, the Department of Justice successfully challenged a consummated merger between two online ratings and reviews platforms, on grounds that it could result in severe data-related network effects, creating unscalable entry barriers and increased switching costs. Consequently, the acquirer was made to divest the target’s assets to restore competition. | | | | |
<
< | However, increasing number of data-related transactions have made regulators deviate from conventional methods to evaluate and ensure data’s minimal impact on competition. For instance, in 2014, the European Commission (EC) analysed whether Facebook could use WhatsApp? as a data source to augment its position in advertising (post-acquisition) and noted an absence of competition concerns, as Google dominated data collection. This significantly contributed to the development of the competition and data intersection, as the possibility of defining markets solely based on data was recognised. Nevertheless, the analysis was limited and ignored privacy-concerns consumers could experience as a potential competition issue.
This position was later clarified when the EC evaluated the Microsoft/LinkedIn transaction. The EC recognised that, Microsoft’s intention to integrate LinkedIn? into its products (post-acquisition) could result in severe data-related network effects, which could foreclose competition and create entry barriers in the professional social networking market. In this scenario, the EC acknowledged the reduced privacy-protection that consumers could experience as a competition issue, and approved the transaction only after Microsoft offered behavioural commitments addressing these concerns.
In 2017, privacy-related concerns in competition received renewed attention from Germany’s Federal Cartel Office (FCO), as the FCO preliminary assessed Facebook’s practice of merging data generated through Facebook users’ use of third-party applications (Facebook’s subsidiary companies like Instagram, WhatsApp? etc., and embedded applications on Facebook) with their respective Facebook user accounts to be an abuse of dominance. It stated that users could not have effectively consented to this practice, given Facebook’s dominance, and even viewed this as a data protection violation. In February 2019, the FCO, in line with its preliminary assessment, issued a prohibition order against Facebook for abusing its dominant position vide its data policy. More importantly, the FCO also assessed the ...
Further, Germany and Austria also amended their merger law to detect acquisitions of companies (with low turnovers) in the digital sector, by requiring notification of transactions based on value. A similar amendment is being considered across the European Union (EU).
Compared to such experiences in the EU, U.S.A. has generally refrained from commenting on data-related transactions with multisided markets (Facebook/WhatsApp). However, in 2014, the Department of Justice successfully challenged a consummated merger between two online ratings and reviews platforms, on grounds that it could result in severe data-related network effects, creating unscalable entry barriers and increased switching costs. Consequently, the acquirer was made to divest the target’s assets to restore competition. | >
> | On account of the preceding discussion, it is evident that antitrust law can be used to regulate data related concerns, including consumers' privacy and data protection. Given the GDPR, the latter must not be considered as only viable in the EU. This is because, even prior to the FCO's enforcement of the GDPR, the EC acknowledged privacy-concerns to be part of competition issues in the Microsoft/LinkedIn case. Consequently, it is imperative that competition regulators across the world commence using antitrust law to regulate data. This is pertinent, as legislative and long-term solutions to the data conundrum are truthfully difficult to evaluate, as the threat model is not only subject to continuous evolution, but also has an overarching impact radius that is difficult to account for comprehensively. Until this innovation has been devised, it is evident that antitrust law is the global vehicle to address this issue, before world economies lose sight of the curve. | | | Lessons for India |
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BalajiVenkatakrishnanFirstEssay 5 - 08 Oct 2019 - Main.BalajiVenkatakrishnan
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Antitrust as a short-term vehicle to combat the Big Data Conundrum?
-- By BalajiVenkatakrishnan - 07 Oct 2019 | |
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< | The advent of digitalization and data analytics has transcended the traditional understanding of markets and their regulation. Data-driven business models have become crucial to gain competitive advantages, such that 79.4% of participants in a survey feared displacement by competitors with ‘data cultures’. Such concerns have prompted regulators to contemplate data’s impact on competition. However, regulators in India remain unresponsive to this emerging challenge. In this essay, I aim to identify global experiences in the competition and data intersection that may provide meaningful lessons for India. | >
> | The advent of digitalization and data analytics has transcended the traditional understanding of markets and their regulation. Data-driven business models have become crucial to gain efficiencies, and create customer benefits, but have also been deployed to gain competitive advantages and market power. The latter could result in competition foreclosure, exclusionary practices, and several other anti-consumer effects. In fact, 79.4% of participants in a survey feared displacement by competitors with ‘data cultures’. This is extremely concerning, as the game of big data capitalism is in any case dominated by few companies like Facebook and Google. Further, the penumbra and domino effects of data-driven technologies on the economy and every stakeholder in society has left legislatures around the world struggling to devise comprehensive regulations.
Such concerns have prompted regulators to contemplate data’s impact on competition. However, regulators in India remain unresponsive to this emerging challenge. In this essay, I aim to identify global experiences in the competition and data intersection that may provide meaningful lessons for India. | | | Global Experiences | |
<
< | Data analytics helps companies achieve economic efficiencies and create consumer benefits. Conversely, companies strive to acquire data to gain market power, which could foreclose competition, or lead to collusive and exclusionary practices. Thus, regulators struggle balancing pro-competitive effects and anti-competitive conduct, as they are traditionally price-centric in evaluating markets while data is difficult to value. | >
> | Data analytics helps . Conversely, companies strive to acquire data to gain market power, which could foreclose competition, or lead to collusive and exclusionary practices. Thus, regulators struggle balancing pro-competitive effects and anti-competitive conduct, as they are traditionally price-centric in evaluating markets while data is difficult to value. | | | However, increasing number of data-related transactions have made regulators deviate from conventional methods to evaluate and ensure data’s minimal impact on competition. For instance, in 2014, the European Commission (EC) analysed whether Facebook could use WhatsApp? as a data source to augment its position in advertising (post-acquisition) and noted an absence of competition concerns, as Google dominated data collection. This significantly contributed to the development of the competition and data intersection, as the possibility of defining markets solely based on data was recognised. Nevertheless, the analysis was limited and ignored privacy-concerns consumers could experience as a potential competition issue. |
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BalajiVenkatakrishnanFirstEssay 4 - 08 Oct 2019 - Main.BalajiVenkatakrishnan
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Have we learned our lesson? - From Open Source to Open Data and Data Trusts | >
> | Antitrust as a short-term vehicle to combat the Big Data Conundrum? | | | -- By BalajiVenkatakrishnan - 07 Oct 2019 | |
<
< | Let's put this in perspective. For years Microsoft opposed the open source software movement, and even branded it as a "cancer". Eventually, Microsoft pivoted. It adapted its business model to be compatible with open source software, and even went on to acquire Github (an open source software platform) for 7.5 billion dollars. At the outset, perhaps this example helps signify two important aspects - (1) the initial, but long drawn struggle against open source software resulted in a centralized software industry with few dominant enterprises, which (could have) stagnated innovation; and (2) open source software is presently the norm, and not counterculture. Basis this, there is speculation about what could have been, if the benefits of open source software were embraced without the struggle. However, the world's next technological dilemma is already afoot, and at its epicenter is data. Consequently, any speculation vis-a-vis the open source software struggle should have in mind the ongoing data conundrum, as this will ensure that mistakes of the past are minimized. Accordingly, in this brief essay, I aim to examine whether the ongoing data conundrum has learned from its predecessor, given that some solutions to combat it share similarities with the open source software movement.
_The Data Struggle & its similarities with the Open Source Software Movement_
The advent of digitalization and data analytics has transcended the traditional understanding of markets and their regulation. Data-driven business models have become crucial to gain competitive advantages, such that 79.4% of the participants in a survey feared displacement by competitors with ‘data cultures’. Large data sets coupled with data analytics helps companies achieve economic efficiencies, and consequently, companies strive to acquire data to gain market power. This results in competition foreclosure, and anti-consumer effects.
This not only forecloses competition, but also leads to anti-consumer effects.
Thus, regulators struggle balancing pro-competitive effects and anti-competitive conduct when data intersects with competition, as regulators are traditionally price-centric in evaluating markets while data is difficult to value.
Such concerns have prompted regulators to contemplate data’s impact on competition. However, India remains inexperienced in these concepts at an independent and interdependent level. In this essay, I aim to identify global experiences in the competition and data intersection that India must learn from and implement to ensure progress.
Similarities
Subsub 1
Subsection B
Subsub 1 | >
> | The advent of digitalization and data analytics has transcended the traditional understanding of markets and their regulation. Data-driven business models have become crucial to gain competitive advantages, such that 79.4% of participants in a survey feared displacement by competitors with ‘data cultures’. Such concerns have prompted regulators to contemplate data’s impact on competition. However, regulators in India remain unresponsive to this emerging challenge. In this essay, I aim to identify global experiences in the competition and data intersection that may provide meaningful lessons for India. | | | | |
<
< | Subsub 2 | >
> | Global Experiences | | | | |
>
> | Data analytics helps companies achieve economic efficiencies and create consumer benefits. Conversely, companies strive to acquire data to gain market power, which could foreclose competition, or lead to collusive and exclusionary practices. Thus, regulators struggle balancing pro-competitive effects and anti-competitive conduct, as they are traditionally price-centric in evaluating markets while data is difficult to value. | | | | |
>
> | However, increasing number of data-related transactions have made regulators deviate from conventional methods to evaluate and ensure data’s minimal impact on competition. For instance, in 2014, the European Commission (EC) analysed whether Facebook could use WhatsApp? as a data source to augment its position in advertising (post-acquisition) and noted an absence of competition concerns, as Google dominated data collection. This significantly contributed to the development of the competition and data intersection, as the possibility of defining markets solely based on data was recognised. Nevertheless, the analysis was limited and ignored privacy-concerns consumers could experience as a potential competition issue. | | | | |
<
< | Section II | >
> | This position was later clarified when the EC evaluated the Microsoft/LinkedIn transaction. The EC recognised that, Microsoft’s intention to integrate LinkedIn? into its products (post-acquisition) could result in severe data-related network effects, which could foreclose competition and create entry barriers in the professional social networking market. In this scenario, the EC acknowledged the reduced privacy-protection that consumers could experience as a competition issue, and approved the transaction only after Microsoft offered behavioural commitments addressing these concerns. | | | | |
<
< | Subsection A | >
> | In 2017, privacy-related concerns in competition received renewed attention from Germany’s Federal Cartel Office (FCO), as the FCO preliminary assessed Facebook’s practice of merging data generated through Facebook users’ use of third-party applications (Facebook’s subsidiary companies like Instagram, WhatsApp? etc., and embedded applications on Facebook) with their respective Facebook user accounts to be an abuse of dominance. It stated that users could not have effectively consented to this practice, given Facebook’s dominance, and even viewed this as a data protection violation. In February 2019, the FCO, in line with its preliminary assessment, issued a prohibition order against Facebook for abusing its dominant position vide its data policy. More importantly, the FCO also assessed the ... | | | | |
<
< | Subsection B | >
> | Further, Germany and Austria also amended their merger law to detect acquisitions of companies (with low turnovers) in the digital sector, by requiring notification of transactions based on value. A similar amendment is being considered across the European Union (EU). | | | | |
>
> | Compared to such experiences in the EU, U.S.A. has generally refrained from commenting on data-related transactions with multisided markets (Facebook/WhatsApp). However, in 2014, the Department of Justice successfully challenged a consummated merger between two online ratings and reviews platforms, on grounds that it could result in severe data-related network effects, creating unscalable entry barriers and increased switching costs. Consequently, the acquirer was made to divest the target’s assets to restore competition. | | | | |
<
< |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines: | >
> | Lessons for India | | | | |
<
< | | >
> | Compared to global experiences, India’s unbridled focus on digitalizing its economy has outpaced its legal regime, where a comprehensive law on data protection was proposed only in 2018, the right to privacy was not recognized as fundamental until 2017, and India’s merger control regime was given effect only in 2011. In this scenario, companies have unsurprisingly looked to seize data-related opportunities and exploit the legal vacuum to gain competitive advantages. Illustratively, in 2014, a competitor acquisition by India’s leading cab aggregator aimed at gaining an advantage over Uber was not notified to the regulator, as the transaction did not exceed merger thresholds. Additionally, an abuse of dominance complaint against WhatsApp? for revising its terms to permit sharing of its user data with Facebook was dismissed. In contrast, and as discussed above, the FCO has held Facebook to have abused its dominant position, and contravened provisions of the GDPR in relation to a similar complaint. | | | | |
<
< | Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list. | >
> | Thus, there is abundant scope for India to learn from global experiences and develop a sophisticated legal framework responding to the discussed challenges. Firstly, India must amend its merger thresholds to account for transaction value to be able to detect digital transactions (like Germany). Additionally, despite the lack of data protection laws, the regulator could consider consumers’ privacy-concerns under the garb of quality competition while evaluating transactions that could create network effects or entry barriers. Lastly, India must consider establishing a committee of competition, data and privacy experts with comparative knowledge, to help educate and aid the regulator on issues involving an intersection of these concepts. |
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BalajiVenkatakrishnanFirstEssay 3 - 08 Oct 2019 - Main.BalajiVenkatakrishnan
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | -- By BalajiVenkatakrishnan - 07 Oct 2019 | |
<
< | Let us put this in perspective. For years Microsoft opposed the open source software movement, and even branded it as a "cancer". Just a few years later, Microsoft pivoted. It adapted its business model to be compatible with open source software, and even went on to acquire Github (an open source software platform) for 7.5 billion dollars. Perhaps this example helps signify at the outset two important aspects - (1) the initial, but long drawn struggle against open source software resulted in a centralized software industry with few dominant enterprises, which (could have) stagnated innovation; and (2) open source software is presently the norm, and not counterculture. Basis this, there is speculation about what could have been, if the benefits of open source software were embraced without the struggle. However, the world's next technological struggle is already afoot, and at its epicenter is data. Consequently, any speculation vis-a-vis the open source software struggle should have in mind the ongoing data struggle, as this will ensure that mistakes of the past are minimized. Accordingly, in this brief essay, I aim to examine whether the ongoing data struggle has learned from its predecessor, given that some solutions to combat the data struggle share similarities with open source software movement. | >
> | Let's put this in perspective. For years Microsoft opposed the open source software movement, and even branded it as a "cancer". Eventually, Microsoft pivoted. It adapted its business model to be compatible with open source software, and even went on to acquire Github (an open source software platform) for 7.5 billion dollars. At the outset, perhaps this example helps signify two important aspects - (1) the initial, but long drawn struggle against open source software resulted in a centralized software industry with few dominant enterprises, which (could have) stagnated innovation; and (2) open source software is presently the norm, and not counterculture. Basis this, there is speculation about what could have been, if the benefits of open source software were embraced without the struggle. However, the world's next technological dilemma is already afoot, and at its epicenter is data. Consequently, any speculation vis-a-vis the open source software struggle should have in mind the ongoing data conundrum, as this will ensure that mistakes of the past are minimized. Accordingly, in this brief essay, I aim to examine whether the ongoing data conundrum has learned from its predecessor, given that some solutions to combat it share similarities with the open source software movement. | | | _The Data Struggle & its similarities with the Open Source Software Movement_ | |
>
> | The advent of digitalization and data analytics has transcended the traditional understanding of markets and their regulation. Data-driven business models have become crucial to gain competitive advantages, such that 79.4% of the participants in a survey feared displacement by competitors with ‘data cultures’. Large data sets coupled with data analytics helps companies achieve economic efficiencies, and consequently, companies strive to acquire data to gain market power. This results in competition foreclosure, and anti-consumer effects.
This not only forecloses competition, but also leads to anti-consumer effects.
Thus, regulators struggle balancing pro-competitive effects and anti-competitive conduct when data intersects with competition, as regulators are traditionally price-centric in evaluating markets while data is difficult to value.
Such concerns have prompted regulators to contemplate data’s impact on competition. However, India remains inexperienced in these concepts at an independent and interdependent level. In this essay, I aim to identify global experiences in the competition and data intersection that India must learn from and implement to ensure progress. | | | |
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BalajiVenkatakrishnanFirstEssay 2 - 08 Oct 2019 - Main.BalajiVenkatakrishnan
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< | | | | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | |
<
< | Have we learned our lesson? - Information Capitalism vis-a-vis the Open Source Movement | >
> | Have we learned our lesson? - From Open Source to Open Data and Data Trusts
-- By BalajiVenkatakrishnan - 07 Oct 2019
Let us put this in perspective. For years Microsoft opposed the open source software movement, and even branded it as a "cancer". Just a few years later, Microsoft pivoted. It adapted its business model to be compatible with open source software, and even went on to acquire Github (an open source software platform) for 7.5 billion dollars. Perhaps this example helps signify at the outset two important aspects - (1) the initial, but long drawn struggle against open source software resulted in a centralized software industry with few dominant enterprises, which (could have) stagnated innovation; and (2) open source software is presently the norm, and not counterculture. Basis this, there is speculation about what could have been, if the benefits of open source software were embraced without the struggle. However, the world's next technological struggle is already afoot, and at its epicenter is data. Consequently, any speculation vis-a-vis the open source software struggle should have in mind the ongoing data struggle, as this will ensure that mistakes of the past are minimized. Accordingly, in this brief essay, I aim to examine whether the ongoing data struggle has learned from its predecessor, given that some solutions to combat the data struggle share similarities with open source software movement.
_The Data Struggle & its similarities with the Open Source Software Movement_ | | | | |
<
< | -- By BalajiVenkatakrishnan - 06 Oct 2019 | | | | |
<
< | Similarities and differences between the open software movement and open data | | | Similarities |
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BalajiVenkatakrishnanFirstEssay 1 - 07 Oct 2019 - Main.BalajiVenkatakrishnan
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>
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| META TOPICPARENT | name="FirstEssay" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Have we learned our lesson? - Information Capitalism vis-a-vis the Open Source Movement
-- By BalajiVenkatakrishnan - 06 Oct 2019
Similarities and differences between the open software movement and open data
Similarities
Subsub 1
Subsection B
Subsub 1
Subsub 2
Section II
Subsection A
Subsection B
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list. |
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