EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

3. Tackling discretionary limits of consumer welfare. Proposing self-determination as a dimension of consumer welfare As pointed out by Graef, even though we are facing new mechanisms that are based on personalization of services on the basis of their data, the harm in such a situation is the same as the consumer surplus is shifted to dominant firms as a result of exploitation of consumers and it could be seen as an competition law issue (Graef, 2021, p. 474). Could we then in a situation where a consumer is clearly losing their right to self-determine where their data is going to, resort to consumer harm standard as known in competition law? Could competition law take autonomy of a consumer and their privacy preferences into account and allow increased self determination. I claim that the situation is not entirely hopeless, at least not when we talk about dominant online platforms such as Facebook or Google. If we see the situation as one where the consumer is significantly worse off as their perceptions of what is gathered and the potentials of which data and how data are used diverge significantly, this could be seen as a negative change in consumer welfare. However, this denotes offering leeway and discretions for the concept of consumer welfare. Self-determination as a consumer harm would then made of loss of privacy and loss of autonomy. Firstly, self-determination inherently involves the question of how privacy considerations can become a part of competition law but also how this can be taken into account on a larger scale, e.g., in interpreting ways in which consumer welfare can be understood in digital markets that involve privacy concerns. The starting point is that for competition law privacy issues are either totally separate from competition law or privacy is seen as a dimension of e.g., consumer welfare (consumers’ well-being). 12 It is important to note that competition law does not directly take into account fundamental rights such as privacy into account as it focuses on economic welfare instead. Competition authorities cannot act solely on the basis of privacy argument and there the actors are different so it is about the foundations of competition law – some limitations of how these can be used. Privacy is slowly becoming a part of competition law but it is very novel but this is not established. Secondly, a consumer, using the model of consent as a part of the business model of online platforms, one that is based on terms and conditions, loses their autonomy and has no options to opt out from revealing their connections, preferences, interests, and activities in the form of data given to Facebook if they want to use Facebook. It could be seen as a significant decrease in consumer welfare. Here, self-determination could be seen as one of the ways consumer welfare has been interpreted, that is consumer choice. This is because excessive data gathering could be seen as and exploitive abuse where consumers are left

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