Big Data has become a very important resource and is considered as the currency of today’s digital market. Big Data can be understood as the collection of data characterized by large volume, velocity, variety and value, which are processed into various datasets having huge commercial value. Big data enables the companies to provide a wide gamut of services to their customers and ensures innovation and efficiency in the digital markets. However, access to a large volume of data can lead to market power and can cause anti-competitive forces in the market. Thus, there is a great potential risk of big data from a competition law perspective. The author tries to examine the burgeoning significance of big data in the digital market and then critically analyses the Indian Competition Law which fails to acknowledge the relevance of big data in establishing the market dominance which can subsequently cause detrimental effect to the competition.
India competition law and the abuse of dominant position
Competition Act, 2002 (“Act”) was enacted with the objective of preventing activities having adverse effects on the market and promoting and sustaining competition in the market. Section 4 aims to prohibit abuse of the dominant position by an enterprise or a group of enterprises. It defines the dominant position as a position enjoyed by an enterprise whereby enables it to
- operate independently of competitive forces prevailing in the relevant market; or
- affect its competitors or consumers or the relevant market in its favour.
Traditionally, dominance has primarily been measured in terms of market share. In pursuant to Section 19(4), besides market shares, other factors like the size of the market, market structure, vertical integration, the dependency of the customers are also taken into consideration. The exhaustive lists of the practices that shall amount to an abuse of the dominant position are laid down under Section 4(2) of the Act. However, there is no exhaustive list of factors which constitute dominance under Section 19(4) of the Act. The Competition Commission of India (“CCI”) has the power to take into account other factors which may be relevant for the determination of dominance.
Data: a new currency of digital markets.
Data is a multi-dimensional term and understood in a very broad sense. Every piece of information can be said to be data. According to the Personal Data Protection Bill, 2019, modelled on European Union General Data Protection Regulation (“EU GDPR”), data is defined in its broadest sense to include representation of information, facts, concepts, opinions, etc. Data can be of various types such as personal and non-personal; user and transactional; individualized and anonymized data. From a competition law perspective, every type of data can be relevant. However, personal and sensitive personal data are of huge relevance to the data processor, especially in the digital market. They are considered as the new oil/currency of the digital and online markets. Online platforms are heavily dependent on the collection of a large amount of data in order to provide enhanced and quick services to the users. Such data provide substantial competitive advantage since they can use the collected data to infer consumer behaviour and taste and restrict their competitors from entering into the market by not providing the data to them. German Monopolies Commission Report has said that data is an important competitive factor in a multi-sided digital market and hence a power factor. It was also stated that the concentration of relevant data in the hands of a few enterprises could hinder competition and contribute to the abuse of market power. Access to personal data can be directly monetized in the era of digitalization and the issue becomes quite relevant especially in India where there is no legal framework to protect the personal data.
In India, data has not been considered as a parameter for establishing the dominant position in India by the CCI; however, it is high time we acknowledge the role of big data in quantifying market power. The Competition Law Review Committee, set up in India, in its report has also opined expanding the ambit of Section 19 so as to include ‘control over data’ as a factor in determining the dominant position under Section 4. Control over data may lead to intensive use of big data to raise barriers to entry to new firms, engage into exclusionary conduct with the third party and even enter into pre-emptive mergers with the help of accumulated data. Moreover, Section 19(4)(m) of the Act states “any other factor which the Commission may consider relevant for the inquiry”, which makes the Section inclusive in nature. The CCI in the DLF case has firmly stated that Section 19 shall be given a wide interpretation so as to include any factor which the commission considers relevant for the inquiry. Hence, control over data shall be explicitly made a factor under Section 19(4) for assessing dominance.
Quantity v. Quality
Another question lingering around is how much data would amount to a dominant position. The general answer could simply be that the data related dominance depends on the amount of the data one has. However, a quantitative standpoint does not provide an adequate answer given the diversity and application of data in the market. It is not the quantity of data that always matters rather it is the quality of information and insights gained from such raw data that determines the dominance in the market. Additionally, large outdated data is of less relevance than the newer data archive since it counts the current preference of the customer and hence can assess the market dominance.
Data as a tool in establishing dominance in other jurisdictions:-
Germany:- In its pursuit of creating a more focused and digital competition law, Germany has recently bought 10th amendment to the German Competition Law also known as GWB Digitization Act. The amendment inter alia addresses the burgeoning significance of data by adding a new Article 18(3a) to include “access to competition-relevant data” as an additional factor for assessing the market position of a company. Recently, in February 2019, the Federal Cartel Office (“FCO”) in Germany in its landmark case against Facebook, held Facebook liable for abuse of dominance for collecting user data from a third party and its other owned platforms like WhatsApp and Instagram and linking it to their own data. The decision also made a reference to Article 18(3a) and stated that the data collected in digital platforms play an important role in the assessment of dominance in the market. Although the decision was later suspended by the Düsseldorf Higher Regional Court, the FCO decision still holds relevance with respect to the relevance of data is assessing the dominant position.
European Union:- Article 102 of the Treaty on the Functioning of the European Union(erstwhile Article 82 of the Treaty Establishing the European Community) prohibits the abuse of a dominant position by any undertakings within the market. The Act does not define what would qualify as a dominant position or factors establishing dominance. However, dominance is more likely to be found on the basis of market share alone. In the case of AKZO Chemie BV v Commission of the European Communities, the European Court has firmly stated that 50% of market shares constitute in themselves, the proof of the existence of dominant position. However, the European Court, in the case of Hoffmann-Ra Roche, did consider the importance of personal data of the customer in the assessment of dominance.
United States:- Monopolisation in the market is usually governed by Section 2 of the Sherman Act. The section lists two ingredients which: 1) possession of monopoly in the relevant market and 2) acquisition of such power to monopolise the market. Like the EU’s TFEU, The Sherman Act also does not provide any guidance as to what factors would establish the dominant position. Hence, it relies on the market share to prove monopolization as seen in the case of American tobacco v. United States. This stance was even clear in the recent Microsoft case, where the US Supreme Court concluded that Microsoft possesses a dominant position based on their huge market share which was 95%. However, such an objective test fails to take into account the fact that many entities even with a low market share can exercise dominance by virtue of a huge collection of data relevant for hindering competition in the market.
With the unprecedented rise of digital platforms and the growing relevance of the data in the digital market, it is very pertinent that the CCI takes such developments into account while assessing the dominant position of an enterprise. As we have made a significant leap towards datafication, it stands as a concern for the anti-trust regulators because it can be utilized to deduce about the behaviour of the consumers at low expenditure allowing companies to make a firm hold in the market by the collection of sensitive information of the clients and obstruct the opponent companies from developing products that can provide competition in the market. Since data is not considered an asset under the competition law, the enactments therein are unable to ascertain such targets, often with definite actual turnover or physical assets during the review process.
Looking into the current development of big data in digital world and surge in several data-driven mergers across the globe, many countries have amended their anti-trust law to keep up with the pace of the development and respond to the problem arising out of it. India should take heart from the German Competition Law regime which has given due importance to control over data as a factor for assessing the dominant position and the FCO’s decision against Facebook is a great example to deal with the challenges of data related to abuse of dominance in the market. It is high time that the Indian Competition law framework acknowledges such developments and make the needed amendments to address the problem.
ABOUT THE AUTHOR
Suvam Kumar is a fourth-year BA LLB student from National Law University, Jodhpur. He has a keen interest in Commercial Law.