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Attention being bought and sold by online platforms. User’s self-determination in governing their own data as a dimension of consumer welfare in antitrust?

Beata Mäihäniemi University of Helsinki Faculty of Law, Legal Tech Lab Yliopistonkatu 3, 00100 Helsinki, Finland e-mail:

Abstract Extensive data gathering, the fact that one’s attention is being bought and sold, occurs due to the lack of self-determination on the side of the users of online platforms. Users are aware that their data contributes to the improved performance of an online platform, however, they are not aware of other purposes for which this data can be used. Consequently, they cannot decide how much and which kind of data they wish to reveal and where it is going to be used. In fact, users are nudged to reveal as much data as possible and the only choice they have is to not to use the online platform at all if they do not agree for data gathering. This article asks whether self-determination, the ability of the user (also referred to as ‘consumer’ depending on the context) to decide how their data is used later, could be seen as a dimension of a consumer welfare in antitrust. What would this fundamental change to the foundations of competition law denote and what does it require in practice? For example, how can competition law consider the decreased welfare of a particular individual as a loss of self-determination where the extent in which this data will be used in the future can differ from consumer to consumer. The situation where the consumer cannot decide on what happens to the data, the commodity with which they are paying for seemingly free services such as social media etc. and where they are left with only two choices: agree to terms and conditions of a platform or not, is like a Goliath and David encounter, a situation of power asymmetry. The article has been inspired by the comics that has been as result of discussions by the group of researchers at the Legal Tech Lab, University of Helsinki. Keywords: attention, consumer welfare, extensive data gathering, online platforms, self-determination. JEL Classification: K210


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