EU ANTITRUST: HOT TOPICS & NEXT STEPS
EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022
1. Introduction Information intermediaries gather data often without consumers being aware of which data are in fact gathered and how are these data used later on. This is commonly known as ‘nudging’ consumes into transactions that can be seen as exploitative (Petit, 2017, p. 261) or ‘the digital grand bargain’ (Balkin, 2018, p.6). Here, ‘the human seems to be only a “user” or a “resource”, necessary to supply energy, new data or approval of adhesion contracts that impose take-it-or-leave-it conditions’ (Wróbel, 2021). Consumers seem to be stuck in some kind of feeling of hopelessness that there is nothing they can actually do about their data once it is gathered by online platforms and these data become a commodity of these platforms and can be sold or used for other purpose without the knowledge of the person from whom originally data was gathered from. This has been defined by ‘digital irritation’ (Ytre-Arne and Moe, 2021) or ‘digital resignation’ (Draper and Turow, 2019). This problem could be viewed as a competition law issue as it is most vivid in the environment of large tech giants where self-determination is further impaired by asymmetries of information and power. Such a practice could be an abuse of dominance. A single person is like a biblical David fighting with Goliath, where the chances of winning are scarce. How does this lack of self-determination look in practice? Think of the following scenario. I am not actually aware of what happens to my data once I click ‘agree’ on terms and conditions on that website with cute puppy pictures. Even where I consent, I do not necessarily know what that means. I am under the influence of a dominant online platform and experiencing asymmetry of power. This is because Google or Facebook is in a stronger business position than me and can dictate the terms of a relationship between us. Moreover, perhaps I may not feel comfortable with too much responsibility over my data, especially where the environment in which my data is gathered and used, the mode of operation of online platforms as well as terms and conditions of the use of these platforms are non-transparent. The issue of self-determination concerns both the issue of which data is gathered by gatekeepers (e.g., my sensitive data when I visit flirting apps etc.) and possibly the issue of what can be done with my data in the future. Nevertheless, this second dimension of self-determination is more etheric as it has to be assessed hypothetically. Consequently, consumers do not really know how they are harmed, or harm may only happen in the future. However, I argue here that the issue of self-determination could be tackled by re defining the notion of consumer welfare which can be defined as “the individual benefits derived from the consumption of goods and services. In theory, individual welfare is defined by an individual’s own assessment of their satisfaction, given prices, and income. Exact measurement of consumer welfare therefore requires information about individual preferences” (OECD; 1993, p. 29).
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