Mapping the Inter-relation of Abuse of Dominant Position and Merger Control Regime vis-à-vis Big Data: The Curious Case of WhatsApp Privacy Policy
| Author | Kritika Singh,Sarthak Mishra |
| DOI | http://doi.org/10.1177/22774017221098800 |
| Published date | 01 June 2020 |
| Date | 01 June 2020 |
| Subject Matter | Articles |
Article
Mapping the Inter-relation
of Abuse of Dominant
Position and Merger
Control Regime vis-à-vis
Big Data: The Curious
Case of WhatsApp
Privacy Policy
Kritika Singh1 and Sarthak Mishra1
Abstract
The meteoric rise of the digital platforms and their increasing dominance can
be easily considered the highlight of the latter half of the previous decade. Even
though antitrust laws do apply to such online markets, the determination of
the competitive strength of in these digital markets was often determined by
the quantum of data accumulated by the entities. The article is an attempt by the
authors to evaluate the feasibility of applicability of the existing competition law
framework to the growing platform economies and the resultant implications
of personal data being collected by such entities. For this research, the authors
have outlined three specific questions. First, what is the inter-relation between
the growing platform economy and merger control regime of a country? Second,
what are the possible avenues of concerns that may arise due to collection of
personal data? Finally, what are the possible enforcement challenges that would
hamper the applicability of existing competition regimes to the digital platforms?
The research is doctrinal research, and the authors have adopted a comparative-
analytical research methodology for evaluating the above-mentioned research
questions. The authors have considered the jurisdictions of the EU and India as
the geographical scope for the research. The authors consider the following upon
the conclusion of the study. First, the use and access of this data after the merger
with companies with low turnover confer the acquiring enterprise a market
power by which it can have an edge over its competitors in the market which
will ultimately harm the competition in the market. Second, the digital market is
Journal of National
Law University Delhi
7(1–2) 53–75, 2020
© 2022 National Law
University Delhi
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DOI: 10.1177/22774017221098800
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1 National Law University, Jodhpur, Rajasthan, India.
Corresponding author
Sarthak Mishra, National Law University, Jodhpur, Rajasthan 342004, India.
E-mail: sarthak.mishra@nlujodhpur.ac.in
54 Journal of National Law University Delhi 7(1–2)
data-driven; hence, collection of copious amounts of data places the big-tech
players in a position of control, allowing them to indulge in exclusionary and
exploitative conduct. Third, the assessment basis of combinations, more
specifically in cases of data-based entities within the competition law, needs a
serious re-assessment to include data within the scope of assessment as it is the
primary asset in such cases.
Keywords
Digital platforms, big data, accumulation of big data, abuse of dominance, data-
driven mergers, monetisation of data, third-party tracking
Introduction
The liberalisation policies and the establishment of the WTO regime in the early
half of the 1990s not only resulted in the opening of the global markets but also
led to an increased integration of material and human resources. While the positive
implications of the shift in the global regime is well documented, the adverse
implications of the same have been constantly rearing up their heads. Although
the shift from the isolated world to the interconnected world has been a mixed
bag, one of the gratifying features has been the facilitative role played by the
digitisation of the economy, growth of the platform economies and technological
advancements of like nature.1
While the growth of these platform economies can be easily termed as meteoric,
the regulatory challenges accompanying them have had an air of speculation
around them since inception. The regulatory challenges concerning platform
economies, while multifarious in nature, and their genesis can be traced to the
glaring differences in their operability and the considerations going into increasing
their marketability in comparison to the traditional market models.2
While traditional brick-and-mortar businesses rely on brand value, monetary
strength and market reputation to further their business goals and market presence,
the platform businesses are entirely reliant on the data collected from the consumer
traffic on their websites and thereafter use the same in a direct or indirect manner
for revenue generation.3
This results in the creation of another facet of regulation, that is, the regulation
of the data being collected by such platforms as a part of their business practices,
the same shall form the cornerstone of the article. Such data owing to their nature
and relevance in terms of giving insight into an individual’s psyche have been
1 Maurice E. Stucke & Ariel Ezrachi, How Digital Assistants Can Harm Our Economy, Privacy, and
Democracy, 32 Berk. Tech. Law J. 1239 (2018).
2 David S. Evans & Richard Schmalensee, The Antitrust Analysis of Muti-sided Platform Businesses,
in OxfOrd handBOOk On InTernaTIOnaL anTITrusT ecOnOmIcs 404 (rOger BLaIr & danIeL sOkOL eds.,
OUP, 2014).
3 Abu Zakaria Faroukhi et al., Big Data Monetisation throughout Big Data Value Chain: A
Comprehensive Review, 7(3) J. BIg daTa (2020). https://doi.org/10.1186/s40537-019-0281-5
(accessed 27 February 2022).
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