Towards Smarter Regulation in the Areas of Competition, Data Protection and Consumer Law: Why Greater Power Should Come with Greater Responsibility

Abstract

Based on a mix of conceptual insights and findings from cases, this paper discusses three ways in which the effectiveness of regulation in the areas of competition, data and consumer protection can be improved by tailoring substantive protections and enforcement mechanisms to the extent of market power held by firms. First, it is analysed how market power can be integrated into the substantive scope of protection of data protection and consumer law, drawing inspiration from competition law’s special responsibility for dominant firms. Second, it is illustrated how more asymmetric and smarter enforcement of existing data protection rules against firms possessing market power can strengthen the protection of data subjects and stimulate competition based on lessons from priority-setting and cooperation by consumer authorities. Third, it is explored how competition law’s special responsibility for dominant firms can be further strengthened in analogy with the principle of accountability in data protection law. Similarly, it is discussed how positive duties to ensure fair outcomes for consumers are developed in consumer law. The analysis offers lessons for improving the ability of the three regimes to protect consumers by imposing greater responsibility on firms with greater market power and thus posing greater risks for consumer harm.

A Legal Perspective on the Antecedents of Consumer Protection in Digital Financial Services

“…This aligns with the broader objective of consumer protection, which aims to prevent potential misuse, unauthorized access, data breaches, and empower individuals to make informed choices in the digital realm. Therefore, the collaboration between data privacy and consumer protection fosters an environment where consumer rights are upheld, personal information is secure, and digital interactions are characterized by accountability and respect for privacy (Graef & Van Berlo, 2021). Consequently, the hypothesis we propose is as follows: H4: There is an impact of data privacy on consumer protection.…”

A step back to look ahead: mapping coalitions on data flows and platform regulation in the Council of the EU (2016-2019)

“…The negotiations on the DSA, DMA and DGA legislative dossiers will generate significant debates and controversies at the EU level. Many detailed proposals and ideas are being voiced to shape the EU's approach on myriad of policy issues related to the regulation of data flows, competition and content moderation (Graef & van Berlo, 2020;Gillepsie et al, 2020). Policy proposals presented in the context of this new phase should take into account the informal power balance between member states in the Council, and existing asymmetries in their capabilities to defend national positions in Brussels.…”

The German Facebook Case: The Law and Economics of the Relationship between Competition and Data Protection Law

“…See Colangelo/Maggiolino (2019, 366), Këllezi (2019, 355-356) but also Crémer et al (2019, 80). 61 See Graef/Van Berlo (2020), who propose to use the "special responsibility" principle of Art. 102 TFEU also in EU data protection law, which would enable to treat dominant and non-dominant firms differently.…”

“… See, e.g., EDPS (2014),Kerber (2016, 647),Graef/van Berlo (2020), as well asKerber (2019, 40) for using also the interplay with other policies for dealing with the competition problems through large online platform firms. 100 In the DMA proposal the obligations in Art.…”