EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

Or should we offer such possibilities by default as it has been suggested in the German Facebook saga investigations? This change to the core of competition law is a part of a larger movement, where the mutual connection between human behaviour, how people interact with technologies and whether it leads to changes in law has to be explored (See Cohen, 2019, Hildebrandt and O’hara, 2020; Hildebrandt 2017). Increasing human interaction with online platforms will indispensably lead to challenging the application of current law (see Mäihäniemi, 2020). Most importantly, law could in fact assist a human in deriving more benefit from these technology interactions and protect her rights (e.g., European Parliament, 2020, European Commission, 2020a, European Commission, 2020b). In part 2, I look at how is self-determination impaired in digital markets, in part 3 I tackle discretionary limits of consumer welfare and explain why self determination could increase consumer welfare by increasing consumer choice. 2. How is self-determination impaired in digital markets? Are consumers sovereign in their choice of which data can be gathered from them and what can be done with their data in the future? It seems that they are not for various reasons. One of them is the unclarity as to whether they own their own data. Unclear relationship as to the ownership of data as these could be seen as a ‘commodity’– a property where we can identify ‘the existence of “an owner” who can decide what to do, and with whom’ (Benkler, 2006, p. 61). This is contrast with seeing data as ‘commons’ where ‘no single person has exclusive control over the use and disposition of any particular resource in the commons.’ (ibid). It has been widely discussed that in fact one cannot fully own their data, since data is co-created and gathered in interaction with online platforms and other users (Klein, 2021). What is more, where dominant platforms are increasingly treated in the EU competition law as public utilities, ( Google and Alphabet v Commission judgement, 2021) we could hypothesize that in such a public space, self-determination of a consumer should be enhanced as it would require more transparent rules (see e.g., Graef, 2021, Graef 2018). This could be compared with an area with surveillance cameras, where privacy and autonomy of consumers in under constant supervision, however, the standards need to be higher than in private space. Self-determination of a consumer is also impaired as they are vulnerable where they end up revealing their data all the time while searching for stuff on the Internet. Facebook itself claims that to create personalized products that are unique and relevant to you, we use your connections, preferences, interests and activities based on the

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