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Digital protectionism? Antitrust, data protection, and the EU/US transatlantic rift

Digital protectionism? Antitrust, data protection, and the EU/US transatlantic rift Abstract EU authorities increasingly take antitrust and data protection enforcement action against US internet companies. While many believe in digital protectionism, this article looks at the foundations of data protection and antitrust policies across the Atlantic to propose an alternative explanation based on the distinct views over how online markets work and should be regulated. Europeans associate data protection with inalienable rights, Americans treat data as an asset. Europeans use competition policy to advance personal freedom, US antitrust policy focuses on economic efficiency. These singular EU traits encourage the regulation of major internet companies. While the European mistrust of data amassing by private parties supplies political motivation to rein in on digital giants, its competition law framework provides a toolkit capable of overcoming challenges commonly present whenever regulators take antitrust enforcement action against Big Data firms. The US does not share either. This indicates that the EU/US divide over internet regulation will grow—and transatlantic tensions perilously increase. The article concludes by arguing for an adjusted role for economic reasoning in antitrust enforcement as a way to bridge differences. I. INTRODUCTION In 2015, President Obama stated that Europeans were using privacy protection laws as pure digital protectionism.1 In 2018, President Trump affirmed that European antitrust action against Google demonstrated how Europeans, economic ‘foes’, were constantly taking advantage of the US.2 In doing so they echoed American concerns that selective antitrust3- enforcement combined with changes in privacy protection to enable the creation of the European Single Digital Market aimed at harming American business and boosting European players.4 Europeans dismissed claims of political motivation.5 However, at least under Americans’ eyes, these claims are not completely groundless. US internet companies are under significantly higher regulatory pressure in Europe than at home, leading the Wall Street Journal to call the European Commissioner to Competition their “nemesis” and “de facto global regulator”6 and the New York Times to affirm that she “strikes fear into silicon valley”.7 European actions that directly impact US companies include antitrust and data protection investigations, record fines, and new laws and regulations.8 Claims of digital protectionism constantly surface whenever a new movement takes place.9 What is undisputable is that over the past years the gulf between the US’ and the EU’s approach to antitrust and data protection has been widening, all while businesses and regulators are claiming the need for regulatory harmonization in data markets.10 It is not clear, however, how and if integration can happen. This article examines this growing divide under a new framework that integrates public policies on data protection and antitrust. First, it adds a new perspective to the debate by arguing that deep-rooted differences in the historical evolution of both data protection and antitrust policies are a good justification to why the transatlantic gulf is widening. Second it suggests that while harmonization is unlikely (and may be unnecessary), a window of opportunity for international convergence may arise from the renewed EU’s focus on private damages in antitrust litigation. It also provides a tentative framework under which this convergence process may take place. The article is divided into four parts. The first is this introduction. Part two outlines how data protection and antitrust enforcement policies differ across the EU and the US. On the privacy side, while Europeans qualify personal privacy and control over data as an inalienable right, Americans treat it as an asset that may be freely traded. On the antitrust side, Europeans use competition policy as a way to advance personal freedom, allowing fairness and liberty considerations that find no grounds in the US’ more efficiency-driven economic-centred approach. The next two sections are the core of the article. The third sheds light on the under-explored dynamics that exist between privacy protection and competition policies in data-intensive markets. It shows how a holistic view of antitrust enforcement in data markets that considers the key differences between privacy protection and competition policies across the Atlantic puts the EU in a singular position to push for a formal and informal interconnection between these policies. Compared to the US, European officials have both stronger political motivation and unique tools to regulate internet companies. Therefore, the more the digital economy grows in importance, the more Europe and the US will drift apart, increasing transatlantic tensions. This difference in motivation and tools should prove more salient when traditional antitrust policy does not provide bright-clear answers (grey enforcement zones), such as in many dominance investigations. Indeed, the so-far best examples of the transatlantic rift involve dominance investigations against Google and Facebook. Finally, the fourth discusses how a failure to recognize these differences may lead Americans to misconstrue European actions as mere economic protectionism. However, the framework proposed herein indicates that these actions reflect legitimate distinctive assumptions on what is the role of privacy protection and antitrust policies in a society and, by consequence, how governments should monitor and regulate online markets. Both sides have to gain by recognizing the importance of these cultural differences. Americans must acknowledge them if they are to effectively influence EU policy-making. Europeans must better explain their decisions, lest seeing their actions condemned as arbitrary. The section then argues that both sides can learn from one another when designing an optimal policy for antitrust analysis for data markets and that institutional shifts in the EU may provide a credible opening a window for some harmonization. It also briefly discusses the value of data interoperability tools in minimizing some concerns. II. THE EU/US DIVIDE IN DATA PROTECTION AND ANTITRUST POLICIES The data protection divide Privacy is an amorphous concept with different meanings across societies. The EU and the US developed two different cultures of privacy protection11 that led to different public policies safeguarding these privacy interests. Currently, Europeans provide more comprehensive protections to personal privacy in private relations than Americans.12 This section provides an outline of these differences and how they translate into data protection rules.13 This outline focuses on EU proto-federal and US federal policies as the most important in each jurisdiction, notwithstanding the variations that exist within EU Member States and US States.14 European policies reflect much of the French and German cultures of privacy protection as a safeguard of personal honour. Historically, high-status citizens used civil lawsuits to prevent the dissemination of false/negative news that resulted from the expansion of a free press. These lawsuits helped defend personal lives and family honour from lies, insults, or unpleasant news while ensuring a private space for deliberation and a right to information self-determination.15 Under such view, the primary enemy of one’s privacy would be private third-parties (the media), capable of publishing false or unpleasant information about someone.16 This broad personal privacy right is enshrined on Article 7 of the European Charter of Fundamental Rights, which affirms that ‘Everyone has the right to respect for his or her private and family life, home and communications’.17 With time, Europeans expanded this right to also include data protection, first through a 1981 Convention,18 then a 1995 Directive,19 Article 8 of the EU Charter on Fundamental Rights and finally through the new EU-wide General Data Protection Regulation (GDPR).20 All these affirmed a regulatory framework that strongly protects EU citizens’ fundamental rights in data processing and control by connecting these citizens with EU institutions developed to safeguard these interests. EU data markets are effectively overseen by public agencies, which can impose limits on how parties may obtain, process, publish, transfer, or retain data.21 This state-intermediated system for data collection and processing is increasingly different from the one in the US. While in the EU online users are ‘data subjects’, in the US they are ‘online consumers’.22 The American concept of privacy is based on its underlying values of liberty, self-government, self-determination, freedom of expression, and the marketplace of ideas. Under this view, the main threat to someone’s liberties (and privacy) are not private parties (the market or the press), but rather abuse of power by governmental authorities.23 Americans feared that the growing governmental investigation and repression apparatus would be used to destroy hard-earned civil liberties.24 The protection of privacy then meant safeguarding a sphere of private deliberation.25 With time it expanded to also prevent the Government from blocking the dissemination of newsworthy content by newspapers and the media.26 This focus on protections against the Government shapes American data protection policies.27 Except for certain industries and specific uses (eg health care, credit reporting), companies are free to contract around data collection, processing, and retention.28 Personal data is as an asset that can be freely traded in private transactions (freely alienable right), subject only to limitations typically applicable to other private contracts (eg severe information asymmetry between consumers and companies).29 The contrasts between the EU and the US are well exemplified by an analysis of the powers given to data protection regulators. The Federal Trade Commission (FTC) has no specific data protection mandate nor fining authority30—it became a regulator after settlements involving consumer rights’ violation regarding data collection forced (or allowed) it to use common law to step-in and fill the power vacuum.31 Rather than trying to impose limits on what companies and consumers may agree on, the FTC regulates private information markets under ‘a system of informed consent’, where it ensures that consumers have access to the terms of the transaction to make an informed decision.32-33 Diversely, Article 8 of the EU Charter of Fundamental Rights34 requires the establishment of independent data protection authorities that impose limits on data collection, processing transfer and use. The GDPR further strengthens these authorities by giving them a broader mandate and the power to fine companies up to 4 per cent of their annual global turnover.35 As a final note, one must stress that these comparisons do not imply the necessary prevalence of one system. While US law may be less data protective, this free-market approach may be one of the foundations of US Internet dominance.36 What one must acknowledge, however, is the important differences in data protection policies across the Atlantic and how they shape regulators incentives to act—as will be seen in more detail below. The antitrust enforcement divide As in the privacy part, this section provides a brief outline of the foundations and the differences between the EU proto-federal and the US federal antitrust policies (notwithstanding possible differences at EU Member State and US State level). While this is a necessary simplification, it emphasizes key differences between the policies across the Atlantic. US antitrust policy reflects in many ways the rise of the Chicago School in the 1970s, which changed antitrust enforcers’ focus from power to incentives. By using rigorous microeconomic analyses, the school defended that rational firms cannot obtain or enhance monopoly power by means of unilateral action, lest trading profits for pure market-share.37 A more conservative judiciary mostly accepted these views,38 leading the US Supreme Court to reverse many of the per se approaches to unilateral conducts.39 Modern US antitrust policy, however, combines the same price theory foundations with game theory and other methodologies to limit these pro-markets views by stressing how conducts can either enhance or diminish consumer welfare.40 Through strong formal economic reasoning, it tries to estimate, albeit imperfectly, the general and consumer welfare impacts of conducts and mergers—increasing the importance of economic experts vis-à-vis that of lawyers. It also emphasizes dynamic competition as the main driver of increases in consumer welfare. All in all, the US analyses unilateral conducts under a mostly rule of reason approach, in which plaintiffs (including the Government) have a high burden to meet when bringing section 2 claims against dominant companies.41 The European antitrust policy diverges from the American in many ways. It still reflects (at least partially) some of the beliefs of German Ordoliberalism,42 a concept that helped shape Germanýs economic and political order after the second world war.43 Under such view, competition has both an important economic and political dimension, as competition deprives companies of economic and associated political power.44 It affirms a strong State role in keeping markets open to competition (punishing abusive conduct) or, if that is unfeasible or has failed, taking decisive action to regulate dominant companies, forcing them to behave as if competition was present.45 This important political connotation further empowers antitrust regulators to take action as a pre-condition to ensuring a fair and democratic society. For the purposes of this article, EU antitrust enforcement diverges from the US in at least five important manners:46 (i) relatively lower thresholds for the characterization of dominance; (ii) a view that dominant firms have ‘special responsibilities’ towards the market; (iii) a more legalistic approach to unilateral behaviour; (iv) the prohibition of exploitative abuses; and (v) the growing importance placed on freedom of choice as a theory of harm. More specifically, US courts require firms to maintain somewhat stable market-shares of at least 70–75 per cent to affirm dominance.47 Market shares below 50 per cent usually trigger a de facto exemption of antitrust liability.48 EU case law acknowledges a rebuttable presumption of dominance in case of market-shares above 50 per cent49 and the Court of Justice of the European Union (CJEU) has affirmed dominance in shares as low as 40 per cent.50 Moreover, CJEU case law has also affirmed that dominant firms have ‘a special responsibility not to allow its conduct to impair undistorted competition on the common market’.51 While the economic justifications and the exact legal contours of this concept are not clear, it generally means that firms with significant market-power (a quasi-monopoly) have a positive obligation to behave as if they did not have such power, adopting special precautions to prevent the emergence of new competition.52 It also means that while in the US an antitrust violation requires a causal link between the conduct assessed and the firm’s market power, in the EU ‘a conduct can be abusive even if it does not maintain or strengthen that [market] power’.53 The EU also has a more formalistic approach to many forms of unilateral behaviour such as exclusive agreements, price discrimination, tying, bundling and loyalty rebates.54 EU Courts accepted a presumed harm to competition as a likely result of a conduct,55 exempting the European Commission from having to prove actual loss of consumer welfare.56 Europe also condemns exploitative practices,57 allowing the use of antitrust laws to proscribe the charging excessive prices that lead to direct loss of consumer welfare (unfair prices or rent extraction).58 In the US, lawfully acquired monopolies are free to charge supra-competitive prices, as these prices reward companies’ superior efforts and are considered drivers of competition and economic growth.59 Finally, the European Commission and the CJEU are assigning a growing importance to the emerging concept of freedom of choice as a theory of harm.60 This theory views competition as a dynamic process of discovery between consumers and firms. Concentrated markets deprive consumers of choice between different suppliers and, therefore, denies them an important individual freedom associated with increased rivalry in any given market. A key role of antitrust regulators then becomes to protect consumer welfare by ensuring that consumer choice is not unduly restricted by abusive behaviour that excludes competitors from the market—even if a reasonable efficiency justification is present.61 This approach differs from the US view on dominance violations, where a conduct is reprievable if a dominant company raises rivals’ costs without a clear efficiency justification.62 III. A FORMAL AND INFORMAL INTERCONNECTION BETWEEN DATA PROTECTION AND ANTITRUST ENFORCEMENT Expanding the core of competition policy to reflect data concerns Competition policy is not an exact science solely focused on maximizing consumer welfare and applied uniformly across different jurisdictions. Rather, as any other public policy, it reflects a series of political choices made by societies, who can prioritize certain policy goals at the expense of others.63 Competition agencies are designed to be responsive to political choices. Competition commissioners are appointed by politicians; Congress and other deliberative bodies establish the legislative goals of competition authorities and allocate budgets depending on how well they see their performance (among others).64 By pointing out the above, this article does not wish to underestimate the general importance of economics to antitrust enforcement. Modern antitrust policy embraces economics: microeconomics and industrial organization play a crucial role in providing uniformity, guidance and stability to competition policy.65 However, even a ‘purely economics-based’ approach to antitrust policy would lead to divergence as economic results constantly differ.66 There is no one size fits all standard to competition policies. Using Ezrachi’s analogy, competition policy should be better seen as a sponge that has a political core, an economic membrane and external by-passes. The core is jurisdiction-specific and encompasses both general values on the maximization of consumer welfare and national social and political priorities that shape local enforcement.67 Incorporating multiple local political priorities may lead to arbitrary and unpredictable enforcement, undermining the legitimacy of competition agencies.68 Thus, the second layer is an economic membrane that exerts external pressure on the political core.69 Economics provides a lingua-franca to competition authorities through a homogeneous rationale and benchmark that prevents excessive expansion of competition policy, increases predictability and facilitates convergence. Finally, there are explicit external political by-passes—clear political choices that favour other social priorities over the enforcement of ‘welfare maximizing’ competition policy.70 This political core is where the EU/US divide on data protection helps explain part of the conflicts taking place between both jurisdictions. As seen above, Europeans are wary of private (and public) institutions amassing personal data, leading the EU as a community to codify a fundamental right to data protection that empowers institutions to oversee the gathering, processing, and using of personal information.71 Antitrust policies should reflect the changes taking place at various levels of European policymaking, as regulators adapt enforcement to the priorities of Europe as a society. This translates into the EU having both the political motivation and the necessary toolkit to push for both the formal and informal integration between privacy and competition policy. Formal integration takes place whenever antitrust policies are explicitly used to address data protection issues—as the German Facebook case below demonstrates. Informal integration may take place whenever concerns about the power of data companies generally encourages regulators to act against such firms (even if not necessarily data related) as a way to rein-in their economic power—with the Google Shopping case as another potentially good example. The interconnection of both policies should create an ‘amplifying effect’ that will drift Europe further away from the US, exacerbating transatlantic tensions. One has to note that this ‘political motivation’ does not imply that all enforcement action against data companies is politically motivated, something that would equate protectionism. On the contrary, what this article defends is that Europe as a jurisdiction has developed a legal framework that encourages the strong regulation of data markets as a way to protect fundamental rights. Part of this may come through antitrust regulators’ acting against the economic power of data companies. There are important links between antitrust and data protection, leading to a growing debate in academia,72 the general press,73 and case law74 on the role of data as key asset in information markets. By regulating a key input, data protection policies shape data markets.75 Limits on data gathering, processing and use established by regulations outline the framework in which companies operate, develop new products and compete to attract demand, among others. In addition, data feedback loops may easily entrench market-power by increasing barriers to entry and switching costs, strengthening network effects, economies of scale and scope and others.76 Antitrust authorities, tasked with assuring the proper functioning of markets, will ultimately address what role the access to and control of user data plays in these markets. In doing so, they will also consider how effective are antitrust remedies in addressing data concerns.77 This is better seen as a regulator’s endogenous decision that reflects both the political climate in which he operates and the toolkit at his disposal—leading different regulators to opt for different solutions. As a result, it is feasible that European antitrust policymakers’ actions partially reflect concerns regarding the economic power of companies that handle large amounts of personal data. In the US, the response may be different, as local preferences and available tools are different. In other words, if agencies are ‘continually engaged in a process of accumulating and spending political capital’ when taking enforcement decisions,78 European regulators have incentives to increasingly act to reign-in, through all means available (antitrust being an important one), on the power of data companies. In doing so, they demonstrate their alignment to political priorities and accumulate political capital to spend in other areas. The same does not hold true for American regulators operating in a political environment where similar actions entail an expenditure of political capital that may be better allocated elsewhere.79 This claim should be made with a necessary caveat that it is valid in fringe cases—that is, cases located in the ‘grey area’ where traditional economic analysis does not provide a clear answer. As mentioned in the beginning of this section, modern antitrust policies embrace economics—and the EU and the US are at the vanguard. Whenever these authorities are faced with situations where one can identify clear pro or anticompetitive effects, it is expected that they adopt similar decisions—even in cases touching on control of personal data.80 The framework proposed herein applies then in cases where theories of harm are less clear and economic reasoning can be used to justify enforcement action or acquittal decisions. This is particularly true in dominance investigations (focus of this article), where the practices under scrutiny are usually adopted by other market participants. In such circumstances, findings of violation vis-à-vis legal competition on the merits many times hinge on more subjective concepts such as lack of economic justification,81 business strategy rationale and intent to exclude,82 or presumptions of illegality if the practice is adopted by a dominant company (but legal otherwise).83 Nonetheless, one can imagine an expansion of this dynamic to other areas where economic reasoning provides less clear results, such as vertical mergers or conglomerate mergers. The German Facebook and the EU Google-Shopping dominance investigations exemplify how the combination of political setting and available toolkit lead to different results on the enforcement of competition policies in data markets between the EU and the US. Nonetheless, it is important to acknowledge that this framework aims to anticipate a widening gap in antitrust enforcement, something that limits the number of leading cases that may be presently quoted, though this number may rise quickly.84 The EU toolkit as an incubator for a formal and informal connection between competition and data protection policies The subsection above discussed how the core of competition policy in the EU may expand to include (legitimate) data protection considerations. This subsection will use the abovementioned Facebook and Google investigations to present how the EU’s competition law toolkit should prove a good incubator in which to foster a formal and an informal interconnection between data protection and antitrust. That is because Europe’s focus on market structure allows authorities to by-pass or apply presumptions to many of the challenges associated with enforcing antitrust in internet markets. As the same by-passes and presumptions are not present in the US, Americans may increasingly misconstrue the actions of their European counterparts as pure digital protectionism. More specifically, the application of a traditional, economics-based antitrust analysis to multi-sided internet markets faces several hurdles in the definition of relevant markets, assessment of market power and calculation of exclusion, efficiencies, and consumer harm.85 These are in many ways associated with the multi-sided nature of the businesses, the dynamic nature of competition in these markets, as well as the difficulties in defining relevant markets, market power and quantifying consumer harm when services are provided for free. For example, in an antitrust lawsuit against Google for abuse of dominance, the Northern District of California affirmed that there cannot be any consumer harm when services are provided for free as there is no market for free services that serves the purposes of antitrust laws.86 The EU, however, emphasizes static over dynamic competition when defining relevant markets and market power in dominance cases.87 Therefore, European authorities may define relevant markets in a more conservative manner and presume dominance at shares above 50 per cent. EU authorities also have an easier framework in which to affirm violations of antitrust rules by dominant companies. They may claim that dominant businesses such as Google or Facebook have a special obligation to assure that competition is not impaired by their actions. In addition, the EU’s more formalistic approach to unilateral behaviour allows the European Commission to presume harm to consumers as the likely result of specific policies adopted by dominant-firms, by-passing the challenges associated with the proper quantification of consumer harm. Finally, EU authorities may bring forward freedom of choice or exploitative abuses as a theory of harm that justifies antitrust claims against dominant companies. One of the most important defences available to dominant companies in the US is that they have obtained their monopoly in a lawful way, as a result of their superior product, business acumen or historical accident. European authorities, however, may ignore this line of argument by claiming that dominant companies have an obligation to behave as if they were in a competitive market, despite the path by which they reached their dominant position. In other words, European authorities are capable of prosecuting companies for the pure appropriation of consumer surplus (exploitative abuse) or for the exclusion of competitors that limits consumer choice (freedom of choice theory of harm), something that US regulators may not. Pharmaceutical companies, for example, are being subject to a growing number of exploitative abuse cases both at EU and national level.88 These features provide European authorities with a singular toolkit: using antitrust policies to answer concerns regarding the power of internet companies. In some cases, there might be a formal interconnection between antitrust and privacy protection policies. This is well exemplified by the preliminary opinion issued by the German antitrust authority89 affirming that Facebook abused its dominant position by infringing EU data protection rules. In a summary, the Bundeskartellamt affirmed that: (i) Facebook, with a 90 per cent market-share, holds a dominant position in the market for social networks, narrowly defined to exclude services such as Twitter, LinkedIn, WhatsApp or Instagram; (ii) as a dominant company, it is subject to stricter obligations that prevent it from exploiting consumers; and (iii) it has abused this dominant position by imposing exploitative business terms to consumers that violate other laws—in this particular case preventing them from ensuring their fundamental right to information self-determination (collecting more personal data than would be fair).90 Such theory of harm would be unacceptable in the US where Facebook would strongly contest market-definition, dominance, any special obligation to protect competition and affirm that, even if it charged supra-competitive prices for their services, these would be lawful given Facebook’s superior product. This easier framework to affirm antitrust violations in internet markets is also exemplified by the evolution of Google’s comparison-shopping cases on both sides of the Atlantic. Although the comparison-shopping investigation does not have a direct data protection component, the framework proposed herein demonstrates how general distrust of major data companies empowers the European Commission to take enforcement action against internet companies such as Google91—an informal connection between antitrust and data protection policies. It is somewhat telling that when considering a ‘grey case’ where a business’ conduct could be considered pro-competitive or exclusionary, regulators in the EU and the US reached opposite conclusions. In short, these cases discussed whether Google illegally benefitted its own comparison-shopping tools by assigning it a prominent place in its search results. The European Commission imposed a then record EUR 2.4 billion fine on Google92 and required the company to develop a ‘search neutral’ system which does not violate EU competition laws—something Google is now trying to implement.93 In its decision, the European Commission: (i) affirmed that general search services are an economic activity because, even if free, users pay for such services by providing their personal data;94 (ii) used mostly qualitative data to define narrow relevant markets, general search and comparison shopping search (ruling out competition with merchant websites such as Amazon and EBay);95 (iii) affirmed that Google is dominant on general search and, as such, had a special responsibility not to harm competition;96 (iv) concluded that Google has systematically given prominent placement to its own comparison shopping tools and had also demoted comparison shopping services in general search;97 and (v) concluded that as a result, Google stifled competition by imposing losses on other rivals and depriving consumers of innovation and freedom to choose alterative supplier.98 The outcome in Europe was opposite to both a similar FTC investigation (where Google’s vertical search practices were cleared) and the KinderStart private lawsuit against Google in Federal Courts, where the Northern District of California ruled out the possibility of antitrust harm arising from practices similar to those that justified Google’s European condemnation. More specifically, after a long investigation, FTC staff affirmed the legality of Google’s changes to search results, despite having found direct evidence that (i) Google demoted its rivals in shopping results; (ii) that such demotion could break rival companies; and (iii) that Google was directly using its strong position in search to force potentially competing companies to give-up assets.99 The FTC apparently overcame the initial hurdles in the definition of relevant markets and in affirming dominance by generally defining a relevant market for general search, a secondary market for vertical search services and affirmed Google is ‘clearly the dominant provider of “general search” in the United States’ with a market share of at least 66.7 per cent.100 However, although it recognized that consumers may be harmed by reduced innovation,101 the FTC affirmed that: American Courts are sceptical of antitrust harm caused by innovation and new product design features (based on Microsoft); since the Supreme Court decision on Trinko, Google would be under no obligation to assist its rivals; and concluded by saying that American Courts have been reluctant to accept section 2 cases where companies that have been legally trying to protect its market-share end up harming competitors and entrenching its market-power.102 All in all, the experience shows how the US’ less deferential legal system effectively prevented the FTC from taking the exact same course of action the European Commission adopted in Europe, where a more legalistic framework facilitates abuse of dominance condemnations.103 The FTC’s reluctance in bringing a claim appears justified when one looks at the KinderStart litigation against Google—an attempt by a private party to appeal directly to Courts (by-passing the FTC). KinderStart, a vertical search website for kids’ products and services, filed a private claim against Google for attempted monopolization and monopolization of markets in violation of section 2 of the Sherman Act—similar to the EU decision against Google. The claim was that Google manipulated its page rank algorithm to voluntarily demote KinderStart’s search rank. This decreased KinderStart’s website traffic and led to losses in both commercial and advertisement revenue. Among others, KinderStart also alleged that Google charged exorbitant prices for its ad placement services because of its market power. The lawsuit, however, was summarily dismissed by the Federal Court of the Northern District of California. In his opinion granting Google’s motion to dismiss without leave to amend, Judge Fogel affirmed that: (i) the search market was not a relevant market for the purposes of antitrust laws because users or companies do not pay to be listed on general search results;104 (ii) Google would have no specific intention to monopolize as KinderStart did not prove that it competed with Google;105 (iii) the Supreme Court’s Trinko decision reaffirmed that simply charging high prices is not a violation of antitrust laws;106 (iv) although KinderStart showed that Google had a market share in excess of 75 per cent in the search market, this alone was not proof that Google had market power to violate antitrust laws;107 (v) that even if KinderStart were removed from the market, this is not an injury that antitrust laws are trying to prevent unless the company can prove that this removal harms consumer welfare;108 and, finally, that (vi) Google is under no obligation to aid a potential rival and it has no obligation to deal with KinderStart (Google is not an essential facility).109 This comparison exemplifies how the European toolkit is well-placed to overcome the challenges faced by antitrust plaintiffs when filing lawsuits against internet companies in the US. IV. THE WAY AHEAD: CONVERGENCE OR DIVERGENCE? So far, this article presented how the differences between the American and European approaches to data protection provide EU regulators with motivation to strengthen antitrust enforcement in data markets. Moreover, it argued that once this process starts, the unique features of European antitrust policy will prove a perfect incubator, so that antitrust cases against US tech companies for dominance violations should grow. Americans do not share and may not understand neither the motivation nor the antitrust tools employed in the EU.110 As the Atlantic divide on antitrust enforcement widens (and given that actual protectionist policies are on the rise)111 calls of digital protectionism should afloat. Tensions run both ways, as Europeans may also be startled by American complaints against what they see as a regular application of the rule of law.112 With a trade war between the EU and the US looming after a series of trade sanctions,113 increased strains between two of the world’s leading trade and security partners can do little good.114 The digital economy is a sensitive area and the EU/US safe harbour for data transfer is proof of the damage that may arise from disputes. The first Safe Harbor came after a major trade conflict between the EU and the US over personal data.115 By striking it down, EU Courts’ placed thousands of American and European companies in disarray,116 reason why business leaders in both jurisdictions welcomed the swift conclusion of the Privacy Shield.117 The challenge remains, however, on whether it is desirable or possible to bridge such significant cultural differences, or at least develop clear mechanisms that prevents tensions arising from pure misunderstanding. This remains a contingent question. On one side, convergence may never be necessary. It is perfectly reasonable and may even be optimal that different legal systems will provide different solutions to challenges of a new internet era, forcing agents to adapt to the norms of a given jurisdiction.118 Lack of convergence is burdensome and may increase the cost of doing business across the Atlantic,119 but the so far successful implementation of the ‘right to be forgotten’ experience in Europe demonstrates that both markets are large enough to justify companies adopting different solutions. The risk is that shifts in market behaviour may lead to the ‘Brussels’ effect’ and the export of stricter standards,120 something that may trigger unpredictable reactions by US authorities facing loss of sovereignty. On the other, the safe harbour demonstrates how convergence is possible if parties move to bridge differences. As there is more to explore from an academic perspective in this second scenario, this section will focus on that. Bringing together such disparate regimes will require both political motivation and a coherent framework. This part argues that: (i) convergence efforts will require a balancing of the role that economics plays in antitrust enforcement on internet markets on both sides of the Atlantic; and (ii) that recent EU reforms open a window of opportunity for this to happen. In addition, it presents data portability as a mitigating measure that companies may explore to decrease tensions while and if converge does not take place. Convergence requires rethinking where and how to apply economics A common framework It is beyond the scope of this article to provide a detailed plan for an ideal antitrust policy for internet markets—this matter certainly deserves and is being subject to in-depth studies of its own.121 Notwithstanding, the multiple variations of Google case-law shows how a hybrid US/EU competition policy may be a good framework to address the challenges of the internet economy. In particular, this policy would ideally incorporate the EU’s more flexible approach to market definition and dominance with the US’ more rigid approach to market exclusion and harm. The lack of clear prices, the multi-sided nature of the businesses and the ever-shifting boundaries of markets will require American regulators to be more flexible in terms of the evidence required in the definition of relevant markets and on the assessment on whether companies possess market power.122 The FTC seemed to be heading in that direction in its Google analysis, when it defined distinct relevant markets for general search and vertical search without the need for formal Small but Significant Non-transitory Increase in Prices (SSNIP)/cross-elasticity, critical loss or other tests.123 Equally, the definition of dominance and foreclosure may need to rely on more general evidence on switching costs, barriers to entry, and others, as plaintiffs will hardly be able to present direct quantifiable evidence of price increases or output reduction in markets with zero pricing or multi-sided characteristics.124 An analysis similar to the KinderStart case, affirming that no antitrust market exists when prices are zero, cannot instruct an effective antitrust policy in an age where services are paid through a combination of data and attention.125 On the other hand, the EU’s increasing focus on ‘consumer choice’ is over-inclusive. Creative destruction is the essence of competition and key to economic development.126 This is particularly true in digital markets, where network effects are welfare enhancing and businesses are constantly improving their products with new features that exclude potential rivals in lateral products but that, normally, benefit consumers.127 EU dominance investigations are too formalistic, especially on foreclosure assessment.128 An optimal policy then will need to include at least part of the US approach to using economics as a tool to properly identify exclusion.129 A good example of how this compromise between both jurisdictions can work in practice is the analysis of another Google litigation, now involving the UK mapping company Streetmap. In a summary, Streetmap accused Google of abusing its dominant position in general search to leverage its Google Maps business (and exclude Streetmap) by linking search queries with map search results. This blending of vertical and horizontal search results is similar to the other Google Shopping cases discussed above. In a detailed opinion, which included expert testimony by economists and technology specialists, the British High Court dismissed the case. It affirmed that while Google’s conduct could have contributed to the exclusion of Streetmap from the market, it did not entail an abuse of dominance and, if it did, it was objectively justified.130 More specifically, the opinion initially accepted a presumption of Google’s dominance in search131 and affirmed that a condemnation depended on whether plaintiffs could prove anticompetitive foreclosure.132 During trial, the Court found that: (i) Google systematically gave prominent placement to its own products at the expense of Streetmap;133 and (ii) that Streetmap traffic declined significantly during the period.134 However, the Court did not find a purposeful demotion of Streetmap by Google135 (which would imply a clear intent to harm competition). As a result, rather than affirming a presumption of harm connected with Streetmap’s exclusion from the market, the Court found that Streetmap’s decline was mostly due to inferior quality.136 It also affirmed that Google had an objective justification behind the integration of Google Search and Maps, and that Google could not structure its products in a less anticompetitive alternative.137 The Streetmap case is particular in many ways, not least because Google apparently had a much superior product and UK Courts are in between the US and the EU in terms of methodology. Nonetheless, it can demonstrate how the approach proposed herein does not require the EU or the US to completely abandon the core principles that instruct their antitrust policies for some convergence to take place. Both jurisdictions can maintain, for example, different thresholds for the characterization of dominance, market foreclosure or consumer harm, limit or expand efficiency defences for practices and maintain a more energetic enforcement in specific areas, such as those relating to the formation of the Single Common Market in the EU. This framework leaves enough flexibility for both sides to adapt their political priorities while speaking a common language in terms of methodology.138 A window for convergence Convergence, however, does not depend solely on the existence of a common framework but also on political motivation and opportunity. Politics is responsive to random events, so different triggers could be used to motivate a push for convergence.139 Institutional changes, however, are more predictable and provide more concrete and coherent possibilities for integration. In this sense, a potential window may arise as the EU implements reforms aimed at increasing private antitrust litigation. The differences in judicial behaviour between the EU and the US are partly based on institutional design features of each jurisdiction and their focus on public or private litigation. The Chicago push was connected with the need to restrict private enforcement of competition laws in the US, where private parties lead antitrust litigation.140 High litigation costs and treble damages may prohibitively raise the cost of doing business, in particular in the case of unilateral conduct where ‘grey cases’ abound. Courts, therefore, resorted to economics and other reasoning141 as gatekeepers to limit private litigation opportunities.142 Opposingly, the EU relies on an administrative system of antitrust enforcement. This modifies Courts’ incentives when setting judicial precedents, as they may rely on sophisticated gatekeepers to ensure that antitrust laws will not over-burden private parties by flooding them with dubious cases. It is rational for EU Courts to adopt more formal tests, deferring to specialized bureaucracies the complex economic assessments surrounding unilateral conduct.143 The EU system may change with the implementation of private damages Directive 2014/104/EU.144 While these changes have important limitations,145 increased private litigation should encourage Courts to develop better screening mechanisms to ensure that only actually harmed parties receive compensation. It is not surprising that the European Commission issued a guidance paper on how Courts should quantify harm in private antitrust lawsuits that makes use of diverse economic tools to calculate damages, pass-on defences, and others.146 The use of the term ‘may’ above is because EU Courts might adopt two different standards of analysis, one for public and another for private parties. For historical reasons, this did not take place in the US where the standards are the same for the FTC and for private litigators.147 If this dual-standard takes place, the convergence window created by this institutional change will be limited. It is not a coincidence that Streetmap exemplifies a potential convergence movement. While one may easily rely on the EU’s more formal findings of dominance, the Court would step in fragile soil by simply presuming harm to Streetmap based on limited freedom of choice—the nature of the claim forced it to assess whether Streetmap’s failure was connected with Google’s actions. As more cases arise, judicial precedent will inevitably develop.148 Data portability as a mitigating factor While and if convergence does not take place, parties caught amidst this transatlantic rift may resort to some mitigating factors to help ease tensions and potential exposure. As concerns are mostly regarding American companies under threat of action by European regulators, this section defends data portability as a pragmatic and unilateral change these companies can adopt to address some of the concerns relating to data protection in the EU.149 Given the growing importance given to ‘freedom of choice’ as a theory of harm, American companies would do well to pay specific attention to how the features of their products impact: (i) consumers’ freedom to migrate to different, competing products; and (ii) interoperability between dominant platforms and products from competitors. Indeed, the EU has a long history of presenting antitrust charges against both American and non-American companies whenever specific features of product design hinder consumer freedom of choice and the development of market alternatives. This is one of the main theories of harm behind the Microsoft/Windows Media Player condemnation, where some of remedies required Microsoft to both develop a Windows version without a pre-installed Media Player and provide interoperability information to competitors. Similar concerns may be found in more recent cases. All the investigations opened against Google have a strong limit the freedom of choice component to it150 and the Microsoft/LinkedIn merger only received EU approval after Microsoft agreed to behavioural commitments that prevent it from discriminating competitors and ultimately restrict freedom of choice.151 Assuring interoperability translates well with European concerns that super-dominant companies are not unduly restricting market entry through illegal action. US tech Companies could, for example, have an institutionalized channel through which rivals may require access to certain features of the platform, raising awareness to potential restrictive practices they did not previously recognize. However, increased interoperability initiatives are insufficient to remedy pure excessive pricing prosecutions like the one Facebook is currently facing in Germany, and may even risk leading to data protection violations of its own. In such cases, US tech companies may want to emphasize the role of data portability mechanisms as a way to limit customer lock-in. Authorities in Europe are getting more and more concerned about the role of data: (i) as a barrier to entry; and (ii) in increasing switching costs. A well-established data portability system could be a defence argument to both claims. Major platforms such as Google and Facebook already have systems which allow for the extraction of data, the same being said about specific data scraping software which are made available for companies. However, these systems currently only allow for the download of limited data, are not widespread and users remain largely misinformed about the existence of these functionalities.152 Article 20 of the GDPR tries to change this dynamic by creating a right to data portability that the EC believes ‘will support the free flow of personal data in the EU and foster competition between controllers’.153 Instead of fighting these provisions, companies could embrace this as a unique opportunity to collaborate with their European counterparts. They could, for example, develop a joint-standard to be used across the industry, which would facilitate both downloading personal data and also transferring it to third-parties (when required by the user).154 This would demonstrate a commitment to upholding European values and weaken exploitative abuses claims by authorities. In exchange, European authorities could at least consider this an important mitigating factor in an eventual prosecution. V. CONCLUSION Recent fears of a full-blown trade war demonstrate how market protectionism is widespread and on the rise. This paper cannot completely rule out protectionism as a force behind Europe’s approach to data protection and antitrust enforcement.155 However, this article adds a different perspective by arguing that those initiatives reflect, at least in a relevant part, historical differences in the shaping of data protection and competition policies in the EU and the US. As Europeans explore more in depth the interconnection between both policies (currently still at its early stages), the differences between both jurisdictions should only widen. Nonetheless, if the current USD 250 billion worth of digital trade156 and the rapid (if problematic) negotiations of a new EU/US Safe Harbor for data transfers imply something is that companies cherish some convergence or at least proper rationalization in this arena. While it may be optimal for different societies to have at least partially different rules (including in relation to competition and data protection policies in digital markets), this divergence can become burdensome and lead to unexpected trade conflicts. American authorities and companies need to consider historical differences if they intend to influence policy-making in Europe (and vice-versa). If not out of respect for European traditions, at least due to a pragmatic view on international relations. Otherwise, EU authorities can easily resort to these cultural distinctions as an underpinning to disqualify American opinions as disconnected from European realities and values—failing to incorporate legitimate concerns in local policy making. The same holds true for Europeans, who must do more to dispel concerns of political targeting. A failure by both sides to understand their significant policy differences may hurt businesses and consumers alike. All the suggestions proposed herein are just one more input to the complex topic of how to shape antitrust and data protection policies to address the concerns of the digital age, a field that will still be receiving contributions for many years to come. Acknowledgement I would like to thank Randal Picker, Lior Strahilevitz, Lisa Bernstein, Daniel Sokol, Ariel Ezrachi, Lars Kjølbye, Thorsten Schiffer, Riccardo Siemens, Patrick Todd, Caio Mario Pereira Neto, two anonymous reviewers, participants of the University of Chicago Legal Scholarship Workshop, participants of the 12th ASCOLA Conference, participants of UChicago’s JSD Colloquium and participants of the 4th ASCL YCC Workshop on Comparative Business and Financial Law for interesting discussions and comments. I would also like to thank Latham & Watkins LLP for kindly accepting me as a visiting lawyer in their Brussel’s office for an internship while writing this piece. Latham & Watkins represents many American technology firms, including Microsoft, Apple and Facebook. I was laterally involved in the Facebook German investigation and in the Microsoft/LinkedIn EU merger review. Due to its limitation, I do not believe this involvement has biased me in any manner. This article is based solely on public data. Footnotes 1 Liz Gannes, ‘Obama Says Europe’s Aggressiveness Toward Google Comes From Protecting Lesser Competitors’ (Re/code, 14 February 2015) <https://www.recode.net/2015/2/13/11559038/obama-says-europes-aggressiveness-towards-google-comes-from> accessed 21 July 2018. 2 Steven Overly, ‘Trump Attacks EU for Google Antitrust Fine’ (POLITICO, 19 July 2018) <https://www.politico.eu/article/donald-trump-attacks-eu-over-google-antitrust-fine-margrethe-vestager/> accessed 21 July 2018. 3 Anu Bradford, Robert Jackson and Jonathon Zytnick, ‘Is EU Merger Control Used for Protectionism? An Empirical Analysis’ (2018) 15 Journal for Empirical Legal Studies 165, 166. The term ‘antitrust’ here is used in its American conception, encompassing all areas of competition policy. 4 For example, A US Senator accused Europe of using antitrust cases against US tech companies as ‘nationalistic policies’, Jemima Kiss, ‘US Senator Accuses Europe of Using Antitrust Cases to Disguise Tech Interests’ The Guardian (Las Vegas, 8 January 2016) 1. The Financial times described how US companies are under attacked in Europe in ‘data protection and competition policy’. Rochelle Toplensky, Duncan Robinson and Madhumita Murgia, ‘Facebook Faces More Hurdles after Europe Fine’ The Financial Times (Brussels and London, 18 May 2017) 1. See also Mark Scott, ‘Tech Firms See Protectionism in E.U. Plan to Unify Market’ New York Times (Brussels, Belgium, 14 September 2016) B1. 5 See Members of the European Parliament, ‘Statement on “Digital Protectionism”’ <http://www.marietjeschaake.eu/wp-content/uploads/2015/09/2015-09-22-MEPs-Statement-on-Digital-Protectionism.pdf> accessed 21 July 2018. 6 See Sam Schechner and Natalia Drozdiak, ‘US Tech Giants Meet Their Nemesis’ Wall Street Journal (Paris, France and Brussels, Belgium, 4 April 2018) 1. 7 Sarah Lyall, ‘Who Strikes Fear Into Silicon Valley? Margrethe Vestager, Europe’s Antitrust Enforcer’ The New York Times (Copenhagen, Denmark, 6 May 2018) 1. 8 Such as four antitrust investigations against Google and Facebook, the introduction of an overarching data protection regulation and even changes to national antitrust laws, as will be better explored below. 9 See, for example, Trump’s declarations and Politico’s coverage of the first Google fine, saying ‘The case is bound to stoke tensions between Brussels and Washington, where some politicians view the Commission’s antitrust enforcement as thinly-veiled protectionism.’ Nicholas Hirst, ‘EU’s Vestager Hits Google with €2.42 Billion Fine’ POLITICO (27 June 2017) <https://www.politico.eu/article/vestager-hits-google-with-e2-42-billion-fine/> accessed 21 July 2018. 10 See statements by Commissioners Terrell McSweeny, ‘Big Data: Individual Rights and Smart Enforcement - Remarks of Commissioner Terrell McSweeny’ <https://www.ftc.gov/public-statements/2016/09/big-data-individual-rights-smart-enforcement> accessed 21 July 2018, p 2. and Margrethe Vestager: ‘[I]t’s not enough for competition authorities to work well in isolation. We also need to work together. … As companies go global, so must competition enforcers.’ Margrethe Vestager, ‘Competition for a Fairer Society’ (European Commission - European Commission, 20 September 2016) <http://ec.europa.eu/commission/2014-2019/vestager/announcements/competition-fairer-society_en> accessed 21 July 2018. 11 See James Q Whitman, ‘The Two Western Cultures of Privacy: Dignity versus Liberty’ (2004) 113 The Yale Law Journal 1151. 1161. 12 Paul M Schwartz, ‘The EU-US Privacy Collision: A Turn to Institutions and Procedures’ (2013) 126 Harvard Law Review 1966, 1176; Lior Strahilevitz, ‘Toward a Positive Theory of Privacy Law’ (2013) 126 Harvard Law Review 2010, 2036–37. 13 See also Paul M Schwartz and Karl-Nikolaus Peifer, ‘Transatlantic Data Privacy Law’ (2017) 106 The Georgetown Law Journal 115. 14 In doing so, this article follows others such as ibid. and Anu Bradford, ‘The Brussels Effect’ (2012) 107 North Western University Law Review 1, 15–16, 23. An important new State regulation is the California Consumer Privacy Act of 2018. While this represents the foremost attempt by a US State to regulate data transfer and processing, it still falls short of the EU safeguards for a brief outline on how these systems compare see n 33 below. 15 Whitman (n 11) 1171–89. 16 ibid 1160–62. The European view is similar to the exposed by Samuel D Warren and Louis D Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193, but that found limitations in the US due to conflicts with other constitutionally protected rights, such as freedom of speech. 17 It is also affirmed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms from 1950, with a similar text. 18 Convention 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981. 19 The EUR-Lex – 31995L0046 – Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data 1995 (Official Journal L 281 , 23/11/1995 P 0031 - 0050). Daniel J Solove and Woodrow Hartzog, ‘The FTC and the New Common Law of Privacy’ [2014] Columbia Law Review 583, 592–93. Schwartz (n 12) 1969–71. 20 Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data 2016 (OJ L 119, 452016, pp 1–88). 21 Landmark cases include Case C-101/01 Criminal Procedure Against Bodil Lindqvist [2003] CJEU ECLI:EU:C:2003:596; Case C-73/07 Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy [2008] CJEU – Grand Chamber ECLI:EU:C:2008:727; Case C-203/15 Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others [2016] CJEU – Grand Chamber ECLI:EU:C:2016:970; Application 931/13 – Case of Satakunnan Markkinapörssi oy and Satamedia oy v Finland (European Court of Human Rights – Grand Chamber). Case C-362/14 Maximilian Schrems v Data Protection Commissioner [2015] CJEU ECLI:EU:C:2015:650, Case C-131/12 Google Spain SL and Google Inc v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González [2014] CJEU (Grand Chamber) ECLI:EU:C:2014:317. 22 Schwartz and Peifer (n 13) 121–23. 23 Whitman (n 11) 1211–16. 24 Richard Alan Clarke and others, Liberty and Security in a Changing World: Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies (Office of the Director of National Intelligence 2013), 57–58, 64. 25 Olmstead v United States (1928) 277 SCt 438 (Supreme Court), p 478 (Brandeis, J, dissenting), Katz v United States (1967) 389 SCt 347 (Supreme Court). This may include, for example, one’s phone (Riley v California (2014) 134 Ct 2473 (Supreme Court)) or the use of GPS to track car movements (US v Jones (2012) 132 Ct 945 (Supreme Court)). 26 See Daniel J Solove and Paul Schwartz, Information Privacy Law (6th edn, Wolters Kluwer 2018), Chapter 3, quoting, among others, Cox Broadcasting Corp v Cohn (1975) 420 SCt 469 (Supreme Court); Florida Star v BJF (1989) 491 SCt 524 (Supreme Court). 27 For example, the Privacy Act 1974 (5 USC 552a) only addresses governmental collection and retention of data. 28 Solove and Hartzog (n 19) 587; Schwartz (n 12) 1975. 29 Omri Ben-Shahar and Lior Jacob Strahilevitz, ‘Contracting over Privacy: Introduction’ (2016) 45 Journal of Legal Studies S1, S6. 30 Strahilevitz (n 12) 2036. Under section 5 the FTC does not have the power to fine companies, and most of the enforcement action is through fear of public exposure and threats of a costly litigation. 31 David A Hyman and William E Kovacic, ‘Why Who Does What Matters: Governmental Design and Agency Performance’ (2013) 82 George Washington Law Review 1446, 18–19, 51–52. Solove and Hartzog (n 19) 585. The FTC focuses on ‘unfair or deceptive acts or practices in or affecting commerce’. Section 5 Federal Trade Commission Act 1914 (15 USC §§ 41–58, as amended), see also Solove and Hartzog (n 19) 598–606. 32 Federal Trade Commission, ‘Privacy Online: Fair Information Practices in the Electronic Marketplace - A Report to Congress’ <https://www.ftc.gov/reports/privacy-online-fair-information-practices-electronic-marketplace-federal-trade-commission> accessed 21 July 2018. Solove and Hartzog (n 19) 592 Federal Trade Commission, ‘FTC Policy Statement on Unfairness’ <https://www.ftc.gov/public-statements/1980/12/ftc-policy-statement-unfairness> accessed 21 July 2018. 33 This system remains in place even in newer attempts to regulate data protection in the US, such as the California Consumer Privacy Act of 2018. In there, most of the safeguards are aimed at ensuring that users have given clear consent and are aware of the different forms of data collection, processing and sale. Consumer rights are mostly associated with the power to refuse data sales without being discriminated in terms of worst products. The California Act has no protections such as a right to be forgotten, no mention of privacy by design and by default nor it grants regulators the power to fine companies for violations around data protection. It mostly ensures statutory damages in cases of data breaches or extractions. The GDPR goes much further in terms of both consumer rights and granting to regulators the powers to intervene in data markets. 34 It affirms that: ‘1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.’ 35 Art 83(5) of the GDPR. This brings privacy protection closer to antitrust policies in terms of regulatory policy. 36 See, in general, Anupam Chander, ‘How Law Made Silicon Valley’ (2013) 63 Emory Law Review 639, and Solove and Hartzog (n 19) 591–92, on why the internet industry greatly favours de-regulation. 37 Richard A Posner, ‘The Chicago School of Antitrust Analysis’ (1979) 127 University of Pennsylvania Law Review 925, 928. 38 Michael D Whinston, Lectures on Antitrust Economics (MIT Press Books 2008) 6. 39 See the Supreme Court decisions in Continental TV, Inc v GTE Sylvania Inc (1977) 433 SCt 36 (Supreme Court), State Oil Co v Khan (1997) 522 SCt 3 (Supreme Court) and Leegin Creative Leather Products v PSKS, Inc (2007) 127 SCt 2705 (Supreme Court) and a somewhat victory in Jefferson Parish Hospital Dist No 2 v Hyde (1984) 466 SCt 2 (Supreme Court). 40 Herbert Hovenkamp, The Antitrust Enterprise: Principle and Execution (Harvard University Press 2009) 38–39; Jorge Padilla and David S Evans, ‘Designing Antitrust Rules for Assessing Unilateral Practices: A Neo-Chicago Approach’ (2005) 72 University of Chicago Law Review 74; Einer Elhauge, ‘Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory’ (2009) 123 Harvard Law Review 397, 400. 41 As shown by the most recent Supreme Court decision in Ohio et al v American Express Co et al [2018] Supreme Court No 16–1454, Ct, which significantly raised the burden plaintiffs need to meet when challenging conducts adopted by dominant firms in multi-sided platforms. 42 Christian Ahlborn and Carsten Grave, ‘Walter Eucken and Ordoliberalism: An Introduction from a Consumer Welfare Perspective’ (2006) 2 Competition Policy International 199/200. John Vickers, ‘Abuse of Market Power’ (2005) 115 Economic Journal F244, F246/247. Silvia Beltrametti, ‘Capturing the Transplant: US Antitrust Law in the European Union’ (2015) 48 Vanderbilt Journal of Transnational Law 1173–78; Paul Behrens, ‘The Consumer Choice Paradigm in German Ordoliberalism and Its Impact upon EU Competition Law’ (2014) Discussion Paper 01/14 Europa-Kolleg Hamburg 24–26. 43 Ahlborn and Grave, ibid 199/200; Vickers, ibid F246/247; Beltrametti, ibid 1173–78; Behrens, ibid 24–26. Some challenge how decisively was the ordoliberal influence in EU Competition policy, see Pablo Ibáñez Colomo, ‘Beyond the “More Economics-Based Approach”: A Legal Perspective on Article 102 TFEU Case Law’ (2016) 53 Common Market Law Review 709, 4. While it is not the goal of this article to settle this debate, one has to point-out that the ordoliberal framework seem to fit well with the current status of EU Competition Law regarding dominant firms, reason why it is mentioned herein. 44 Ahlborn and Grave (n 42) 200/201; Beltrametti (n 42) 1176–78. 45 ibid 199–202 and 204–05. 46 There is another important debate about consumer versus total welfare, though it impacts less directly this discussion. See, Roger D Blair and D Daniel Sokol, ‘Welfare Standards in US and EU Antitrust Enforcement’ (2012) 81 Fordham Law Review 2497. 47 ABA Section of Antitrust Law, Antitrust Law Developments (Eighth, American Bar Association 2017) 229–32. See also United States v Aluminum Co of America (1945) 148 F.2d 416 (2nd Circuit). United States v EI du Pont de Nemours & Co (1956) 351 SCt 377 (Supreme Court); Spirit Airlines, Inc v Northwest Airlines, Inc (2005) 431 F.3d 917 (6th Circuit); Conwood Co, LP v US Tobacco Co (2002) 290 F.3d 768 (6th Circuit). 48 ABA Section of Antitrust Law (n 47) 231–32, quoting Bailey v Allgas, Inc (2002) 284 F.3d 1237 (11th Circuit); AD/SAT, Div of Skylight, Inc v Associated Press (1999) 181 F.3d 216 (2nd Circuit); United Air Lines, Inc v Austin Travel Corp (1989) 867 F.2d 737 (2nd Circuit). 49 Ahlborn and Grave (n 42) 207. Daniel J Gifford and Robert T Kurdle, The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy (University of Chicago Press 2015) 10–11. See also Case C-62/86 - AKZO v Commission [1991] CJEU ECLI:EU:C:1991:286, para 60. 50 Case C-95/04 - British Airways v Commission [2007] CJEU ECLI:EU:C:2007:166, 2007 2331. 51 See Case C-322/81 - Michelin/Commission (Michelin I) [1983] CJEU ECLI:EU:C:1983:313, 1983 3461, para 57; and Case C-280/08 P - Deutsche Telekom v Commission [2010] CJEU ECLI:EU:C:2010:603, para 176. Case C-413/14 P – Intel Corporation Inc v the European Commission [2017] CJEU ECLI:EU:C:2017:632, para 135. 52 Robert O’Donoghue and Jorge Padilla, The Law and Economics of Article 102 TFEU (2nd edn, Hart Publishing 2013), 206–08. Ahlborn and Grave (n 42) 208. See Case C-280/08 P – Deutsche Telekom v Commission, ibid at 125/126. 53 Vickers (n 42) F247. 54 Ahlborn and Grave (n 42) 208; Vickers (n 42) F248–F253. Gifford and Kurdle (n 49) 14–17, 36; Patrick F Todd, ‘Out of the Box: Illegal Tying and Google’s Suite of Apps for the Android OS’ (2017) 13 European Competition Journal 1, 69–75. 55 Christian Ahlborn and David S Evans, ‘The Microsoft Judgment and Its Implications for Competition Policy towards Dominant Firms in Europe’ (2009) 75 Antitrust Law Journal 887, 902; and Francisco Marcos, ‘The Prohibition of Single-Firm Market Abuses: US Monopolization versus EU Abuse of Dominance’ [2017] International Company and Commercial Law Review 8. 56 O’Donoghue and Padilla (n 52) 269–70. Case T-203/01 Michelin v Commission (Michelin II) [2003] CFI ECLI:EU:T:2003:250, 2003 4071; Case C-95/04 British Airways v Commission (n 50); 88/138/EEC Eurofix-Bauco v Hilti (1988) 1988 19 (European Commission); Case 85/76 – Hoffmann-La Roche v Commission [1979] CJEU ECLI:EU:C:1979:36, 1979 461; Case T-65/98 Van den Bergh Foods v Commission [2003] CFI ECLI:EU:T:2003:281, 2003 4653 and Case T-201/04, Microsoft v Commission [2007] CFI ECLI:EU:T:2007:289. The CJEU decision in Intel v Commission (n 51) and the potentially larger role played by the ‘As Efficient Competitor’ test complicates this. Nonetheless, the CJEU affirmed the prima facie presumption of harm and the special responsibility of dominant companies in ensuring that their practices do not harm competition (ibid paras 132–40). These presumptions still tilt the playing field in favour of the Commission in findings of infringement. 57 Art 102(a) TFEU. See also Richard Whish and David Bailey, Competition Law (8th edn, OUP 2015) 759–66. 58 O’Donoghue and Padilla (n 52) 732. There are challenges in the prosecution of exploitative abuses (eg cost determination, incentives given to firms, comparison across products, etc), so case law is somewhat limited—but exists (see Case C-27/76 United Brands v Commission [1978] CJEU ECLI:EU:C:1978:22, 1978 207; Case 26/75 General Motors Continental NV v Commission [1975] CJEU ECLI:EU:C:1975:150; Case 226/84 British Leyland v Commission [1986] CJEU ECLI:EU:C:1986:421, 1986 3263). European authorities are clarifying a methodology which allows them to bring more cases and authorities have vowed to enforce price abuses (See Case C-177/16 Biedrība ‘Autortiesību Un Komunicēšanās Konsultāciju Aģentūra – Latvijas Autoru Apvienība’ v Konkurences Padome [2017] CJEU ECLI:EU:C:2017:689 and Margrethe Vestager, ‘Protecting Consumers from Exploitation’ (European Commission - European Commission, 21 November 2016) <http://ec.europa.eu/commission/2014-2019/vestager/announcements/protecting-consumers-exploitation_en> accessed 21 July 2018). 59 See United States v Aluminum Co of America (n 47) and Verizon Communications Inc v Law Offices of Curtis V Trinko, LLP (2004) 540 SCt 398 (Supreme Court). 60 See, generally, Paul Nihoul, Nicolas Charbit and Elisa Ramundo, Choice - A New Standard for Competition Law Analysis? (1st edn, Concurrences 2016). Behrens (n 42); Paul Nihoul, ‘Freedom of Choice – The Emergence of a Powerful Concept in European Competition Law’ (2012) 3 Concurrences Review 55, quoting cases Case C-202/07 P France Telecom v Commission [2009] CJEU ECLI:EU:C:2009:214, 2009 2009; Case T-201/04, Microsoft v Commission (n 56); Case C-322/81 Michelin/Commission (Michelin I) (n 51). 61 Behrens (n 42) 27–32. 62 Andrew I Gavil, William E Kovacic and Jonathan B Baker, Antitrust Law in Perspective: Cases, Concepts, and Problems in Competition Policy (Thomson/West 2008) 639–40, 666–70. 63 Ariel Ezrachi, ‘Sponge’ (2016) 5 Journal of Antitrust Enforcement 49, 2, 6; David A Hyman and William E Kovacic, ‘Institutional Design, Agency Life Cycle, and the Goals of Competition Law’ (2012) 81 Fordham Law Review 2163, 2170–72. Vestager affirmed: ‘The second question is: Does competition enforcement relate to wider political priorities? And does it inform regulatory and other action taken to implement such priorities? Again, the answer is: Yes, it does.’ Margrethe Vestager, ‘The Future of Competition’ (European Commission - European Commission, 2 October 2015) <https://ec.europa.eu/commission/2014-2019/vestager/announcements/future-competition_en> accessed 21 July 2018. 64 Hyman and Kovacic (n 63) 2170–74. William E Kovacic and David A Hyman, ‘Competition Agency Design: What’s on the Menu?’ (2012) 8 European Competition Journal 527, 532–33. Examples include Europeans explicitly using antitrust to promote the common market (Alison Jones and Brenda Sufrin, EU Competition Law: Text, Cases, and Materials (6th edn, OUP 2016) 35) or the US’ Robinson-Patman Act’s prohibitions on price discrimination and the State Action and Noerr-Pennington doctrines. 65 David S Evans, ‘Why Different Jurisdictions Do Not (and Should Not) Adopt the Same Antitrust Rules’ (2009) 10 Chicago Journl of International Law 161, 167. 66 ibid 162. Simon Bishop, ‘Snake-Oil With Mathematics Is Still Snakeoil: Why Recent Trends in the Application of So-Called “Sophisticated” Economics Is Hindering Good Competition Policy Enforcement’ (2013) 9 European Competition Journal 67, 68–69. 67 Ezrachi (n 63) 4–14. 68 Hyman and Kovacic (n 63) 2170. 69 Ezrachi (n 63) 17. 70 ibid 22–25. Examples again are the State Action and Noerr–Pennington Doctrines in the US or EU specific insurance block exemptions and rules for agricultural products. 71 This is also a strategic view, as with the creation of EU Digital Single Market, Europeans have an express goal of becoming ‘a hub for data services which require both free flows and trust’. See European Commission, ‘Exchanging and Protecting Personal Data in a Globalised World - COM(2017) 7’ <http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017DC0007&from=EN> accessed 21 July 2018, 3. 72 See, generally, Maurice Stucke and Allen Grunes, Big Data and Competition Policy (1st edn, OUP 2016). 73 See ‘The World’s Most Valuable Resource - Data and the New Rules of Competition’ [2017] The Economist <http://www.economist.com/news/leaders/21721656-data-economy-demands-new-approach-antitrust-rules-worlds-most-valuable-resource> accessed 21 July 2018. 74 See the Facebook investigation taking place in Germany or M8124 - Microsoft LinkedIn (European Commission) 34–35. 75 See, generally, Randal C Picker, ‘Competition and Privacy in Web 2.0 and the Cloud’ (2008) 103 Northwestern University Law Review Colloquy 1; Randal C Picker, ‘Online Advertising, Identity and Privacy’ (2009) John M Olin Program in Law and Economics Working Paper No 475. Francisco Costa-Cabral and Orla Lynskey, ‘Family Ties: The Intersection between Data Protection and Competition in EU Law’ (2016) 54 Common Market Law Review 11 and European Data Protection Supervisor, ‘Preliminary Opinion of the European Data Protection Supervisor: Privacy and Competitiveness in the Age of Big Data - The Interplay between Data Protection, Competition Law and Consumer Protection in the Digital Economy’ <https://edps.europa.eu/sites/edp/files/publication/14-03-26_competitition_law_big_data_en.pdf> accessed 21 July 2018. 76 See the Bundeskartellamt preliminary opinion that Facebook is abusing its dominant position, where it affirms that control over data strengthens both direct and indirect network effects, increases barriers to entry and contributes to customer lock-in. Bundeskartellamt, ‘Background Information on the Facebook Proceeding’ <http://www.bundeskartellamt.de/SharedDocs/Publikation/EN/Diskussions_Hintergrundpapiere/2017/Hintergrundpapier_Facebook.html?nn=3600108> accessed 21 July 2018. (p 3) or Picker, ‘Competition and Privacy in Web 2.0 and the Cloud’ (n 75) 6–8. 77 This may not lead to a coherent framework in data protection. In many cases, the weakening of a data company’s economic power requires the sharing of such data—something that violate privacy interests. This leads to an inherent tension between data protection and antitrust and, generally, antitrust remedies are ill-equipped to address data protection concerns. See Maureen K Ohlhausen and Alexander Okuliar, ‘Competition, Consumer Protection, and the Right [Approach] to Privacy’ (2015) 80 Antitrust Law Journal 121, 155. In order to scape this tension, some regulators such as the EDPS have favoured creating a digital clearing house to coordinate the regulation of data markets in the EU. See European Data Protection Supervisor, ‘Opinion 08/2016 - EDPS Opinion on Coherent Enforcement of Fundamental Rights in the Age of Big Data’ <https://edps.europa.eu/sites/edp/files/publication/16-09-23_bigdata_opinion_en.pdf> accessed 21 July 2018. The suggested coordination, however, requires consumers starting to value more privacy. Unfortunately, current behaviour suggests that consumers still prefer the added benefits of data aggregation and free services, as shown by DuckDuckGo’s market-share of 0.2% in the US. 78 Hyman and Kovacic (n 31) 25. 79 See the repeal of the privacy protection regulations put in place by the Federal Communications Commission, which led a Financial Times report to declare the US the ‘Wild West for Personal Data’. FT Views, ‘Digital Privacy Is More than Just Opting in or Out’ Financial Times (31 March 2017) <https://www.ft.com/content/6bb17082-15f1-11e7-80f4-13e067d5072c> accessed 21 July 2018. 80 This was the case, for example, in the review of merger transactions such as Google/DoubleClick, Microsoft/Yahoo, Facebook/WhatsApp (decided before data protection gained such a prominence in the public debate) or even Microsoft/LinkedIn, where the US and EU authorities reached substantively similar conclusions. It was also the case in Bazaarvoice/PowerReviews, a data merger to create a monopoly blocked by the US DoJ, where internal documents pointed out that PowerReview was Bazaarvoice’s ‘only real competitor’, among other telling evidence (US v Bazaarvoice, Inc [2014] ND California No 3:2013cv00133, p 21). 81 As in Aspen Skiing Co v Aspen Highlands Skiing Corp (1985) 472 SCt 585 (Supreme Court). 82 Even if it is not a requirement for finding of infringement. See, for example, Case C-549/10P Tomra Systems and Others v Commission [2012] CJEU ECLI:EU:C:2012:221, paras 19–20 or Case C-52/09 Konkurrensverket v TeliaSonera Sverige AB [2011] CJEU ECLI:EU:C:2011:83, paras 88–89. 83 See, for example, W Kip Viscusi, Joseph E Harrington and John M Vernon, Economics of Regulation and Antitrust (MIT press 2005) 294. Francisco E González-Dias and John Temple Lang, ‘The Concept of Abuse’ EU Competition Law, vol V-Abuse of Dominance Under Article 102 TFEU (1st edn, Claeys & Casteels 2013) 116–22. Hence why European Courts have developed a concept of ‘special responsibility’ in cases such as Case C-322/81 Michelin/Commission (Michelin I) (n 51); Case C-280/08 P - Deutsche Telekom v Commission (n 51); Case C-12/03 P Tetra Laval v Commission [2005] CJEU ECLI:EU:C:2005:87, 2002 4381. 84 Indeed, Google has recently been fined a record EUR 4.34 Billion for its practices involving the Android operating system. Another investigation involving the AdSense platform is ongoing. See European Commission, ‘Press Release - Antitrust: Commission Fines Google €4.34 Billion for Illegal Practices Regarding Android Mobile Devices to Strengthen Dominance of Google’s Search Engine’ (18 July 2018) <http://europa.eu/rapid/press-release_IP-18-4581_en.htm?locale=en> accessed 21 July 2018. The European Commission has taken the acquisition of Shazam by Apple to Phase II, citing strong concerns in the combination of both companies’ databases (European Commission, ‘Press Release - Mergers: Commission Opens in-Depth Investigation into Apple’s Proposed Acquisition of Shazam’ (23 April 2018) <http://europa.eu/rapid/press-release_IP-18-3505_en.htm> accessed 21 July 2018). Other signs also point in the same direction. EU authorities also affirmed that control over data will be subject to scrutiny. In the meanwhile, the FTC affirmed that markets have strong incentives to prevent general harm relating to data FTC report on Consumers and Big Data, Federal Trade Commission, ‘Big Data: A Tool for Inclusion or Exclusion - FTC Report’ <https://www.ftc.gov/system/files/documents/reports/big-data-tool-inclusion-or-exclusion-understanding-issues/160106big-data-rpt.pdf> accessed 21 July 2018. 85 See, for example, OECD, ‘Rethinking Antitrust Tools for Multisided Platforms’ <http://www.oecd.org/daf/competition/Rethinking-antitrust-tools-for-multi-sided-platforms-2018.pdf> accessed 21 July 2018., part I or David S Evans and Richard Schmalensee, ‘The Antitrust Analysis of Multi-Sided Platform Businesses’ in Roger D. Blair and D. Daniel Sokol (eds), The Oxford Handbook of International Antitrust Economics, vol 1 (OUP 2014). 86 Kinderstart.com LLC v Google Inc (ND California) 4. 87 Evans (n 65) 181. 88 See Case CE/9742-13 Unfair pricing in respect of the supply of phenytoin sodium capsules in the UK (Competition and Markets Authority), Autorita Garante della Concorrenza e del Mercato, ‘A480 - Price Increases for Cancer Drugs up to 1500%: The ICA Imposes a 5 Million Euro Fine on the Multinational Aspen’ (14 October 2016) <http://www.agcm.it/en/newsroom/press-releases/2339-a480-price-increases-for-cancer-drugs-up-to-1500-the-ica-imposes-a-5-million-euro-fine-on-the-multinational-aspen.html> accessed 21 July 2018, and European Commission, ‘Press Release - Antitrust: Commission Opens Formal Investigation into Aspen Pharma’s Pricing Practices for Cancer Medicines’ (15 May 2017) <http://europa.eu/rapid/press-release_IP-17-1323_en.htm> accessed 21 July 2018. 89 While this is a German case, it is described here both because it can be grounded in European Law (see Giulia Schneider, ‘Testing Art. 102 TFEU in the Digital Marketplace: Insights from the Bundeskartellamt’s Investigation against Facebook’ (2018) 9 Journal of European Competition Law & Practice 213, 222–23) and because it may suggest a future path to be followed by the European Commission (Natalia Drozdiak, ‘EU Asks: Does Control of “Big Data” Kill Competition?’ Wall Street Journal (2 January 2018) <https://www.wsj.com/articles/eu-competition-chief-tracks-how-companies-use-big-data-1514889000> accessed 21 July 2018). 90 Bundeskartellamt (n 76) 2–4. See also Schneider (n 89) 218, 220 and 222. 91 Google faced heavy opposition from EU’s politicians and commissioners throughout the procedure and they were key in the unprecedented rejection of three commitment proposals. In addition, a key complainant was BEUC, Europe’s largest consumer protection association, who hailed the Commission’s final decision as a ‘game changer’. Part of this intervention is reflecting the fact that less than a quarter of Europeans trust search engines to protect their data, increasing calls for further government action. See Charles Arthur, ‘European Commission Reopens Google Antitrust Investigation’ The Guardian (8 September 2014) <http://www.theguardian.com/technology/2014/sep/08/european-commission-reopens-google-antitrust-investigation-after-political-storm-over-proposed-settlement> accessed 21 July 2018; BEUC, ‘Fair Internet Search - Remedies in the Google Case’ <http://www.beuc.eu/publications/2013-00211-01-e.pdf> accessed 21 July 2018; ‘Google Hit with Record $2.7 Billion Fine in EU Antitrust Case’ Reuters (27 June 2017) <http://fortune.com/2017/06/27/google-billion-fine-eu-antitrust-case/> accessed 21 July 2018; European Commission, ‘Data Protection Survey’ <http://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/Survey/getSurveyDetail/search/data%20protection/surveyKy/2075> accessed 21 July 2018. 25. 92 See European Commission, ‘Commission Fines Google €2.42 Billion for Abusing Dominance as Search Engine by Giving Illegal Advantage to Own Comparison Shopping Service - Factsheet’ (27 June 2017) <http://europa.eu/rapid/press-release_MEMO-17-1785_en.htm> accessed 21 July 2018. And Case AT 39740 Google Search (Shopping) (European Commission). 93 See Nicholas Hirst, ‘Google Submits Search Changes to EU Antitrust Regulators’ POLITICO (29 August 2017) <http://www.politico.eu/article/google-propose-search-changes-to-eu-antitrust-regulators/> accessed 21 July 2018. 94 Case AT 39740 Google Search (Shopping) (n 92) para 158. 95 It also affirmed that Google’s practices would have been abusive even if merchant websites were included in the market definition. See ibid s 5.2.2. 96 ibid paras 271 and 331. 97 ibid para 341. 98 ibid s 7.3.1. 99 The Wall Street Journal obtained a leaked confidential memo in which the FTC staffed discussed the Google investigation, see Brody Mullins, Rolfe Winkler and Brent Kendall, ‘Inside the U.S. Antitrust Probe of Google’ Wall Street Journal (19 March 2015) <http://www.wsj.com/articles/inside-the-u-s-antitrust-probe-of-google-1426793274> accessed 21 July 2018. See, in particular, p 30, Federal Trade Commission, ‘FTC Report on Google’ <http://graphics.wsj.com/google-ftc-report/img/ftc-ocr-watermark.pdf> accessed 21 July 2018. 100 See Federal Trade Commission, ‘FTC Report on Google’, ibid 60–74. In there, the FTC tries to implement a SSNIP test on the advertising side of the market to help define a relevant market of search advertising and search syndication which it would use to go against Google on the AdSense terms—an investigation also ongoing in Europe. However, and consistent to the exposed herein, the agency apparently ruled out the application of any economic test usually employed in the definition of relevant markets and dominance when making such assessments in the comparison-shopping case. 101 ibid 80. 102 ibid 82–86. 103 An interesting point raised by one of the reviewers is whether the fact that Google has been condemned for similar practices in other jurisdictions, such as India, may indicate reverse-protectionism: that is, the US is under-enforcing its antitrust policies as a way to allow the rise of Google and other data companies. While not exhausting the topic, the framework proposed herein indicates this is not the case. American reluctance to sue companies for abuse of dominance is not restricted to the technology sector. In addition, the recent decision by the Supreme Court in the American Express case, affirming the importance of relevant-market definition in multi-sided markets, vindicates the FTC’s reluctance in bringing a claim against Google. If anything, Courts would require the FTC to prove that Google’s conducts had an adverse impact on the general demand for search results and not solely on Google’s competitors in the comparison-shopping market. Nothing in the FTC’s leaked documents indicated they had any evidence of this negative impact. For the Google India condemnation, see C Nos 06 & 46 of 2014 - Shri Vishal Gupta v Google LLC and others (Competition Commission of India). For the US, see Ohio et al v American Express Co et al (n 41). 104 Kinderstart v Google (n 86) 4. 105 ibid 5. 106 ibid 7. 107 The Court pointed other factors which may also indicate Google’s market power, but affirmed that since KinderStart failed to define a relevant market, it did not have to issue an opinion on that matter. ibid 8. 108 ibid 8. 109 ibid 9–10. This is also opposite to the EU, where Courts recurrently affirmed obligations to deal if the asset is essential for competition; Marcos (n 55) 18–19. 110 An example is Apple’s CEO comparing the EU State-aid rules to Venezuela’s ‘arbitrary’ legal system and the Wall Street Journal Editorial Board affirming that these rules risked turning ‘the European Union into a banana republic on high-speed rail’. Rochelle Toplensky, ‘Margrethe Vestager, the Woman Who Took the Fight to Apple’ Financial Times (Brussles, Belgium, 8 December 2016) <https://www.ft.com/content/0055d3ea-bc06-11e6-8b45-b8b81dd5d080> accessed 21 July 2018. And ‘Vestager Gets Vindictive’ Wall Street Journal (New York, USA, 21 September 2016) 1. 111 International Chamber of Commerce, ‘ICC’s Open Market Index - 2017’ <https://iccwbo.org/publication/icc-open-markets-index-2017/> accessed 21 July 2018, 3. 112 See European Parliament members’ response to Obama: ‘The political debates on the way forward [on privacy protection] are not a ‘Transatlantic rift’ and should not be made into one. Rather they represent different views and beliefs that run right through our societies. We consider close cooperation between the EU and the US as vital in a changing world. Neither reaction will help smooth international relations between two of the world’s leading trading partners’ Members of the European Parliament (n 5). 113 ‘Donald Trump Is Fighting Trade Wars on Several Fronts’ [2018] The Economist <https://www.economist.com/graphic-detail/2018/07/20/donald-trump-is-fighting-trade-wars-on-severalfronts> accessed 21 July 2018. 114 The EU and the US are the world’s leading exporters of digital goods, with a surplus of USD 168 Billion and USD 151 Billion (respectively) and respond for the largest cross-border data flows, twice the US/Latin America flows and 50% more than US/Asia flows. Martin A Weiss and Kristin Archick, ‘U.S.-EU Data Privacy: From Safe Harbor to Privacy Shield’ 4. 115 Whitman (n 11) 1156. 116 Weiss and Archick (n 114) 3. 117 Information Technology Industry Council and BSA—The Software Alliance, ‘Tech Industry Leaders Commend Conclusion of Safe Harbor Transatlantic Data Transfer Negotiations’ (2 February 2016) <http://www.bsa.org/news-and-events/news/2016/february/en02022016safeharborconclusion/?sc_lang=en-US> accessed 21 July 2018. 118 For a similar point on antitrust, see Evans (n 65). 119 Weiss and Archick (n 114) 15. European Commission, ‘Exchanging and Protecting Personal Data in a Globalised World - COM(2017) 7’ (n 71) 2. American companies are spending millions of dollars to comply with the GDPR PricewaterhouseCoopers, ‘GDPR Compliance Top Data Protection Priority for 92% of US Organizations in 2017, According to PwC Survey’ (PwC, 23 January 2017) <http://www.pwc.com/us/en/press-releases/2017/pwc-gdpr-compliance-press-release.html> accessed 21 July 2018. 120 See Bradford (n 14) 7–9. 121 See the recent OECD study on the matter—OECD (n 85). 122 See also ibid 15. 123 On the importance and techniques of relevant market definition in monopolization claims, see ABA Section of Antitrust Law (n 47) 599–602. 124 ibid 226–28. This is important because US Courts are reluctant to accept direct showings of exclusion as evidence of dominance. See ibid 227–28, quoting McWane, Inc v FTC (2015) 783 F.3d 814 (11th CIrcuit). 125 Although case law should (hopefully) evolve from the KinderStart framework as more cases reach courts, the decision is not alone in requiring plaintiffs to narrowly define relevant markets through cross-elasticity tests as a pre-condition to any antitrust lawsuit. See, for example, the Ohio et al v American Express Co et al (n 41) 2, Brown Shoe Co v United States (1962) 370 SCt 294 (Supreme Court), at 325 and FTC v Lundbeck, Inc (2011) 650 F.3d 1236 (8th Circuit) 4–6, citing many other cases. 126 See Daron Acemoglu and James A Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty (1st edn, Crown Business 2013) 93–95. Jorge Padilla, ‘The Role of Economics in EU Competition Law: From Monti’s Reform to the State Aid Modernization Package’ [2016] Concurrences Review 10–11. 127 See Todd (n 54) 85–91. It is interesting to notice that the EU itself recognizes this in merger review, however adopting a formal analysis to dominance investigations. An example is the Microsoft cases, in which the EU generally approved potential tying obligations in Microsoft/Skype and Microsoft/LinkedIn, however condemned them in the Windows Media Player investigation. This is inconsistent. See Ibáñez Colomo (n 43)s 4.3.3. 128 For example, on the Windows Media Player bundling case, the European Court of First Instance affirmed a formal theory of foreclosure based on the ubiquitous presence of WMP on Microsoft PCs. Case T-201/04, Microsoft v Commission (n 56) para 1058. See also Ibáñez Colomo (n 43) 11–12. The CJEU’s Case - C-413/14 P Intel v Commission [2017] CJEU ECLI:EU:C:2017:632 is a step in the right direction, though the Court may need to go further to revert the strong-presumption of illegality for certain other practices. It is telling that the FTC has a team of more than 80 PhD economists, while the European Commission’s team does not have even 30. See https://www.ftc.gov/about-ftc/bureaus-offices/bureau-economics/biographies and http://ec.europa.eu/dgs/competition/economist/contacts.html accessed 21 July 2018. 129 For example, analyses focused on whether companies had an actual incentive to exclude a given competitor from the market, combined with common-law doctrines, such as that of narrowing what qualifies as an antitrust injury, of remoteness (eg pass-on defences) and a general concern in deterring welfare-enhancing conduct. See ABA section of Antitrust Law (n 47) 729, quoting RSA Media, Inc v AK Media Group, Inc (2001) 260 F.3d 10 (1st Circuit); Serpa Corp v McWane, Inc (1999) 199 F.3d 6 (1st Circuit); Greater Rockford Energy & Technology Corp v Shell Oil Co (1993) 998 F.2d 391 (7th Circuit). 130 Streetmap EU Ltd v Google Inc & Others (2016) 2016 253 (EWHC) para 177. 131 The Court affirmed this presumption based on Google market share of 75–85% and as a way to expedite the trial, holding that should it decide that Google’s conduct was abusive, there could be a separate assessment on dominance. ibid paras 41–43. However, Google’s high and stable market-share, combined with other qualitative factors such as brand recognition, economies of scale and scope, product portfolio, global presence, and others justify a strong presumption of dominance against the company under the proposed framework. 132 ibid paras 62–63. 133 ibid para 102. 134 ibid paras 130–33. 135 ibid para 79. 136 ibid paras 118–19. In particular, Streetmap did not: (i) recognize St as abbreviation of street (among other linguistic problems); (ii) have slippy maps (that move proportionally to zooming in or out); nor it (iii) recognize natural language searching (eg ‘where is the British Museum’). 137 ibid paras 155–58. 138 In the Streetmap case, EU Courts could, for example, affirm that if plaintiffs demonstrated Google’s clear intent to harm competition, its preferential product placement and the decline of Streetmap, this body of evidence would be enough to prove foreclosure. The US could maintain the more detailed examination of whether Google’s actions drove Streetmap out of the market and whether there were countervailing efficiencies with the practice. 139 For example, the recent Cambridge Analytica scandal in the US has renewed claims for a comprehensive privacy federal data protection regulation. Nonetheless, much of the push for new legislation is still focused on empowering user consent rather than imposing limitations as in Europe. Moreover, with Silicon Valley leading the US lobby industry it is likely that any new regulations may be watered down. See Steven Norton and Angus Loten, ‘Facebook Hearings Illuminate Future of Business and Data Privacy’ WSJ (San Francisco, 16 April 2018) 1; Olivia Solon and Sabrina Saddiqui, ‘Forget Wall Street – Silicon Valley Is the New Political Power in Washington’ The Guardian (San Francisco and Washington, 3 September 2017) 1. 140 Between 2005 and 2015, private antitrust litigation outnumbered public litigation in the US by thousands of cases. See United States, ‘Relationship between Public and Private Antitrust Enforcement - United States OECD Submission’ <https://www.ftc.gov/system/files/attachments/us-submissions-oecd-other-international-competition-fora/publicprivate_united_states.pdf> accessed 21 July 2018 and <http://www.uscourts.gov/sites/default/files/statistics_import_dir/C02Jun14.pdf> accessed 21 July 2018. 141 ABA Section of Antitrust Law (n 47) 729, quoting RSA Media, Inc v AK Media Group, Inc (n 129); Serpa Corp v McWane, Inc (n 129); Greater Rockford Energy & Technology Corp v Shell Oil Co (n 129). 142 Brunswick Corp v Pueblo Bowl-O-Mat, Inc (1977) 429 SCt 477 (Supreme Court). Atlantic Richfield Co v USA Petroleum Co (1990) 495 SCt 328 (Supreme Court), see also William H Page, ‘The Scope of Liability for Antitrust Violations’ [1985] Stanford Law Review 1445, 1460. 143 What EU Courts called ‘margin of assessment’ or ‘margin of discretion’. See Fernando Castillo de la Torre and Eric Gippini Fournier, Evidence, Proof and Judicial Review in EU Competition Law (Edward Elgar Publishing 2017) 76. Between 2004 and 2015 EU authorities started 2066 investigations, of which 907 ended in some form of enforcement (including agreements), a fraction of the US—European Commission, ‘ECN - Statistics’ <http://ec.europa.eu/competition/ecn/statistics.html> accessed 21 July 2018. 144 Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provision of the Member States and of the European Union 2014 (OJ L 349, 5122014, pp 1–19). For a summary of the changes see Sebastian Peyer, ‘Compensation and the Damages Directive’ (2016) 12 European Competition Journal 87 s B.II. 145 See, for example, Peyer (n 144) s D. 146 See European Commission, ‘Communication from the Commission on Quantifying Harm in Actions for Damages Based on Breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union’ <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2013:167:0019:0021:EN:PDF> accessed 21 July 2018; European Commission, ‘Practical Guide on Quantifying Harm in Actions for Damages Based on Breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union - SWD(2013) 205’ <http://ec.europa.eu/competition/antitrust/actionsdamages/quantification_guide_en.pdf> accessed 21 July 2018. The guidelines suggest, among others, comparison techniques such as (i) difference in differences (para 56) or prevented entry methods (para 200); (ii) linear interpolation or extrapolation (para. 67); (iii) regression analysis (para 92); and many variations of those techniques, such as: (iv) cost-based analysis and calculation of average profit margin per unit and of lost sales (para 191) or (v) finance-based analysis and evolution of profitability (para 115/197). See also RBB Economics and Cuatrecasas, Gonçalves Pereira, ‘Study on the Passing-on of Overcharges’ <http://ec.europa.eu/competition/publications/reports/KD0216916ENN.pdf> accessed 21 July 2018. 147 See generally, Justin Hurwitz, ‘Chevron and the Limits of Administrative Antitrust’ (2014) 76 University of Pittsburg Law Review 209. 148 This process may take less long than expected. Only in 2017 two British shopping comparison companies are privately suing Google for abuse of dominance, see James Titcomb, ‘Price Comparison Site Kelkoo Takes Google to High Court over Abuse of Search Dominance’ The Telegraph (London, 3 June 2017) 1; Martin Strydom, ‘Foundem Leads Queue to Fight Google’ The Times (London, 3 July 2017) 1. 149 A similar call for interoperability and adopting shared standards to ease exclusion concerns can be seen at OECD (n 85) 25. 150 See European Commission, ‘EC Google Android Fine’ (n 84) and European Commission, ‘Antitrust: Commission Takes Further Steps in Investigations Alleging Google’s Comparison Shopping and Advertising-Related Practices Breach EU Rules’ (14 July 2016) <http://europa.eu/rapid/press-release_IP-16-2532_en.htm> accessed 21 July 2018. 151 The merger was approved after Microsoft offered commitments that would: (i) ensure that pc manufacturers and distributors are free not to install LinkedIn on Windows; (ii) allow competing professional social networks to maintain current levels of interoperability with Windows; and (iii) grant competing professional social networks access to Microsoft gateway for developers. Again Commissioner Vestager emphasized how such commitments were important to ensure freedom of choice: ‘Today's decision ensures that Europeans will continue to enjoy a freedom of choice between professional social networks.’ European Commission, ‘Mergers: Commission Approves Acquisition of LinkedIn by Microsoft, Subject to Conditions’ (6 December 2016) <http://europa.eu/rapid/press-release_IP-16-4284_en.htm> accessed 21 July 2018. 152 See, Rob Pegoraro, ‘Web Companies Should Make It Easier to Make Your Data Portable: FTC’s McSweeny’ USA Today (Lisbon, 12 November 2017) <https://www.usatoday.com/story/tech/columnist/2017/11/12/web-companies-should-make-easier-make-your-data-portable-ftcs-mcsweeny/856814001/> accessed 21 July 2018 and Christopher Mims, ‘Facebook Data Harvest Yields Confusing Maze’ Wall Street Journal (New York, USA, 14 April 2018) 1. 153 Art 29 Data Protection Working Party, ‘Guidelines on the Right to Data Portability’ <http://ec.europa.eu/information_society/newsroom/image/document/2016-51/wp242_en_40852.pdf> accessed 21 July 2018, p 3. 154 As the EC itself suggested, see ibid 14. 155 There is evidence suggesting that protectionism is not taking place in EU merger review, even in relation to high-technology sectors. See Bradford, Jackson and Zytnick (n 3) 187. However, the protection of EU companies’ competitiveness has always been at the forefront of European market regulation. Bradford (n 14) 40–42. 156 Roslyn Layton, ‘Europe’s Protectionist Privacy Advocates’ Wall Street Journal (9 March 2016) <http://www.wsj.com/articles/europes-protectionist-privacy-advocates-1457566423> accessed 21 July 2018. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Antitrust Enforcement Oxford University Press

Digital protectionism? Antitrust, data protection, and the EU/US transatlantic rift

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© The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
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2050-0688
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Abstract

Abstract EU authorities increasingly take antitrust and data protection enforcement action against US internet companies. While many believe in digital protectionism, this article looks at the foundations of data protection and antitrust policies across the Atlantic to propose an alternative explanation based on the distinct views over how online markets work and should be regulated. Europeans associate data protection with inalienable rights, Americans treat data as an asset. Europeans use competition policy to advance personal freedom, US antitrust policy focuses on economic efficiency. These singular EU traits encourage the regulation of major internet companies. While the European mistrust of data amassing by private parties supplies political motivation to rein in on digital giants, its competition law framework provides a toolkit capable of overcoming challenges commonly present whenever regulators take antitrust enforcement action against Big Data firms. The US does not share either. This indicates that the EU/US divide over internet regulation will grow—and transatlantic tensions perilously increase. The article concludes by arguing for an adjusted role for economic reasoning in antitrust enforcement as a way to bridge differences. I. INTRODUCTION In 2015, President Obama stated that Europeans were using privacy protection laws as pure digital protectionism.1 In 2018, President Trump affirmed that European antitrust action against Google demonstrated how Europeans, economic ‘foes’, were constantly taking advantage of the US.2 In doing so they echoed American concerns that selective antitrust3- enforcement combined with changes in privacy protection to enable the creation of the European Single Digital Market aimed at harming American business and boosting European players.4 Europeans dismissed claims of political motivation.5 However, at least under Americans’ eyes, these claims are not completely groundless. US internet companies are under significantly higher regulatory pressure in Europe than at home, leading the Wall Street Journal to call the European Commissioner to Competition their “nemesis” and “de facto global regulator”6 and the New York Times to affirm that she “strikes fear into silicon valley”.7 European actions that directly impact US companies include antitrust and data protection investigations, record fines, and new laws and regulations.8 Claims of digital protectionism constantly surface whenever a new movement takes place.9 What is undisputable is that over the past years the gulf between the US’ and the EU’s approach to antitrust and data protection has been widening, all while businesses and regulators are claiming the need for regulatory harmonization in data markets.10 It is not clear, however, how and if integration can happen. This article examines this growing divide under a new framework that integrates public policies on data protection and antitrust. First, it adds a new perspective to the debate by arguing that deep-rooted differences in the historical evolution of both data protection and antitrust policies are a good justification to why the transatlantic gulf is widening. Second it suggests that while harmonization is unlikely (and may be unnecessary), a window of opportunity for international convergence may arise from the renewed EU’s focus on private damages in antitrust litigation. It also provides a tentative framework under which this convergence process may take place. The article is divided into four parts. The first is this introduction. Part two outlines how data protection and antitrust enforcement policies differ across the EU and the US. On the privacy side, while Europeans qualify personal privacy and control over data as an inalienable right, Americans treat it as an asset that may be freely traded. On the antitrust side, Europeans use competition policy as a way to advance personal freedom, allowing fairness and liberty considerations that find no grounds in the US’ more efficiency-driven economic-centred approach. The next two sections are the core of the article. The third sheds light on the under-explored dynamics that exist between privacy protection and competition policies in data-intensive markets. It shows how a holistic view of antitrust enforcement in data markets that considers the key differences between privacy protection and competition policies across the Atlantic puts the EU in a singular position to push for a formal and informal interconnection between these policies. Compared to the US, European officials have both stronger political motivation and unique tools to regulate internet companies. Therefore, the more the digital economy grows in importance, the more Europe and the US will drift apart, increasing transatlantic tensions. This difference in motivation and tools should prove more salient when traditional antitrust policy does not provide bright-clear answers (grey enforcement zones), such as in many dominance investigations. Indeed, the so-far best examples of the transatlantic rift involve dominance investigations against Google and Facebook. Finally, the fourth discusses how a failure to recognize these differences may lead Americans to misconstrue European actions as mere economic protectionism. However, the framework proposed herein indicates that these actions reflect legitimate distinctive assumptions on what is the role of privacy protection and antitrust policies in a society and, by consequence, how governments should monitor and regulate online markets. Both sides have to gain by recognizing the importance of these cultural differences. Americans must acknowledge them if they are to effectively influence EU policy-making. Europeans must better explain their decisions, lest seeing their actions condemned as arbitrary. The section then argues that both sides can learn from one another when designing an optimal policy for antitrust analysis for data markets and that institutional shifts in the EU may provide a credible opening a window for some harmonization. It also briefly discusses the value of data interoperability tools in minimizing some concerns. II. THE EU/US DIVIDE IN DATA PROTECTION AND ANTITRUST POLICIES The data protection divide Privacy is an amorphous concept with different meanings across societies. The EU and the US developed two different cultures of privacy protection11 that led to different public policies safeguarding these privacy interests. Currently, Europeans provide more comprehensive protections to personal privacy in private relations than Americans.12 This section provides an outline of these differences and how they translate into data protection rules.13 This outline focuses on EU proto-federal and US federal policies as the most important in each jurisdiction, notwithstanding the variations that exist within EU Member States and US States.14 European policies reflect much of the French and German cultures of privacy protection as a safeguard of personal honour. Historically, high-status citizens used civil lawsuits to prevent the dissemination of false/negative news that resulted from the expansion of a free press. These lawsuits helped defend personal lives and family honour from lies, insults, or unpleasant news while ensuring a private space for deliberation and a right to information self-determination.15 Under such view, the primary enemy of one’s privacy would be private third-parties (the media), capable of publishing false or unpleasant information about someone.16 This broad personal privacy right is enshrined on Article 7 of the European Charter of Fundamental Rights, which affirms that ‘Everyone has the right to respect for his or her private and family life, home and communications’.17 With time, Europeans expanded this right to also include data protection, first through a 1981 Convention,18 then a 1995 Directive,19 Article 8 of the EU Charter on Fundamental Rights and finally through the new EU-wide General Data Protection Regulation (GDPR).20 All these affirmed a regulatory framework that strongly protects EU citizens’ fundamental rights in data processing and control by connecting these citizens with EU institutions developed to safeguard these interests. EU data markets are effectively overseen by public agencies, which can impose limits on how parties may obtain, process, publish, transfer, or retain data.21 This state-intermediated system for data collection and processing is increasingly different from the one in the US. While in the EU online users are ‘data subjects’, in the US they are ‘online consumers’.22 The American concept of privacy is based on its underlying values of liberty, self-government, self-determination, freedom of expression, and the marketplace of ideas. Under this view, the main threat to someone’s liberties (and privacy) are not private parties (the market or the press), but rather abuse of power by governmental authorities.23 Americans feared that the growing governmental investigation and repression apparatus would be used to destroy hard-earned civil liberties.24 The protection of privacy then meant safeguarding a sphere of private deliberation.25 With time it expanded to also prevent the Government from blocking the dissemination of newsworthy content by newspapers and the media.26 This focus on protections against the Government shapes American data protection policies.27 Except for certain industries and specific uses (eg health care, credit reporting), companies are free to contract around data collection, processing, and retention.28 Personal data is as an asset that can be freely traded in private transactions (freely alienable right), subject only to limitations typically applicable to other private contracts (eg severe information asymmetry between consumers and companies).29 The contrasts between the EU and the US are well exemplified by an analysis of the powers given to data protection regulators. The Federal Trade Commission (FTC) has no specific data protection mandate nor fining authority30—it became a regulator after settlements involving consumer rights’ violation regarding data collection forced (or allowed) it to use common law to step-in and fill the power vacuum.31 Rather than trying to impose limits on what companies and consumers may agree on, the FTC regulates private information markets under ‘a system of informed consent’, where it ensures that consumers have access to the terms of the transaction to make an informed decision.32-33 Diversely, Article 8 of the EU Charter of Fundamental Rights34 requires the establishment of independent data protection authorities that impose limits on data collection, processing transfer and use. The GDPR further strengthens these authorities by giving them a broader mandate and the power to fine companies up to 4 per cent of their annual global turnover.35 As a final note, one must stress that these comparisons do not imply the necessary prevalence of one system. While US law may be less data protective, this free-market approach may be one of the foundations of US Internet dominance.36 What one must acknowledge, however, is the important differences in data protection policies across the Atlantic and how they shape regulators incentives to act—as will be seen in more detail below. The antitrust enforcement divide As in the privacy part, this section provides a brief outline of the foundations and the differences between the EU proto-federal and the US federal antitrust policies (notwithstanding possible differences at EU Member State and US State level). While this is a necessary simplification, it emphasizes key differences between the policies across the Atlantic. US antitrust policy reflects in many ways the rise of the Chicago School in the 1970s, which changed antitrust enforcers’ focus from power to incentives. By using rigorous microeconomic analyses, the school defended that rational firms cannot obtain or enhance monopoly power by means of unilateral action, lest trading profits for pure market-share.37 A more conservative judiciary mostly accepted these views,38 leading the US Supreme Court to reverse many of the per se approaches to unilateral conducts.39 Modern US antitrust policy, however, combines the same price theory foundations with game theory and other methodologies to limit these pro-markets views by stressing how conducts can either enhance or diminish consumer welfare.40 Through strong formal economic reasoning, it tries to estimate, albeit imperfectly, the general and consumer welfare impacts of conducts and mergers—increasing the importance of economic experts vis-à-vis that of lawyers. It also emphasizes dynamic competition as the main driver of increases in consumer welfare. All in all, the US analyses unilateral conducts under a mostly rule of reason approach, in which plaintiffs (including the Government) have a high burden to meet when bringing section 2 claims against dominant companies.41 The European antitrust policy diverges from the American in many ways. It still reflects (at least partially) some of the beliefs of German Ordoliberalism,42 a concept that helped shape Germanýs economic and political order after the second world war.43 Under such view, competition has both an important economic and political dimension, as competition deprives companies of economic and associated political power.44 It affirms a strong State role in keeping markets open to competition (punishing abusive conduct) or, if that is unfeasible or has failed, taking decisive action to regulate dominant companies, forcing them to behave as if competition was present.45 This important political connotation further empowers antitrust regulators to take action as a pre-condition to ensuring a fair and democratic society. For the purposes of this article, EU antitrust enforcement diverges from the US in at least five important manners:46 (i) relatively lower thresholds for the characterization of dominance; (ii) a view that dominant firms have ‘special responsibilities’ towards the market; (iii) a more legalistic approach to unilateral behaviour; (iv) the prohibition of exploitative abuses; and (v) the growing importance placed on freedom of choice as a theory of harm. More specifically, US courts require firms to maintain somewhat stable market-shares of at least 70–75 per cent to affirm dominance.47 Market shares below 50 per cent usually trigger a de facto exemption of antitrust liability.48 EU case law acknowledges a rebuttable presumption of dominance in case of market-shares above 50 per cent49 and the Court of Justice of the European Union (CJEU) has affirmed dominance in shares as low as 40 per cent.50 Moreover, CJEU case law has also affirmed that dominant firms have ‘a special responsibility not to allow its conduct to impair undistorted competition on the common market’.51 While the economic justifications and the exact legal contours of this concept are not clear, it generally means that firms with significant market-power (a quasi-monopoly) have a positive obligation to behave as if they did not have such power, adopting special precautions to prevent the emergence of new competition.52 It also means that while in the US an antitrust violation requires a causal link between the conduct assessed and the firm’s market power, in the EU ‘a conduct can be abusive even if it does not maintain or strengthen that [market] power’.53 The EU also has a more formalistic approach to many forms of unilateral behaviour such as exclusive agreements, price discrimination, tying, bundling and loyalty rebates.54 EU Courts accepted a presumed harm to competition as a likely result of a conduct,55 exempting the European Commission from having to prove actual loss of consumer welfare.56 Europe also condemns exploitative practices,57 allowing the use of antitrust laws to proscribe the charging excessive prices that lead to direct loss of consumer welfare (unfair prices or rent extraction).58 In the US, lawfully acquired monopolies are free to charge supra-competitive prices, as these prices reward companies’ superior efforts and are considered drivers of competition and economic growth.59 Finally, the European Commission and the CJEU are assigning a growing importance to the emerging concept of freedom of choice as a theory of harm.60 This theory views competition as a dynamic process of discovery between consumers and firms. Concentrated markets deprive consumers of choice between different suppliers and, therefore, denies them an important individual freedom associated with increased rivalry in any given market. A key role of antitrust regulators then becomes to protect consumer welfare by ensuring that consumer choice is not unduly restricted by abusive behaviour that excludes competitors from the market—even if a reasonable efficiency justification is present.61 This approach differs from the US view on dominance violations, where a conduct is reprievable if a dominant company raises rivals’ costs without a clear efficiency justification.62 III. A FORMAL AND INFORMAL INTERCONNECTION BETWEEN DATA PROTECTION AND ANTITRUST ENFORCEMENT Expanding the core of competition policy to reflect data concerns Competition policy is not an exact science solely focused on maximizing consumer welfare and applied uniformly across different jurisdictions. Rather, as any other public policy, it reflects a series of political choices made by societies, who can prioritize certain policy goals at the expense of others.63 Competition agencies are designed to be responsive to political choices. Competition commissioners are appointed by politicians; Congress and other deliberative bodies establish the legislative goals of competition authorities and allocate budgets depending on how well they see their performance (among others).64 By pointing out the above, this article does not wish to underestimate the general importance of economics to antitrust enforcement. Modern antitrust policy embraces economics: microeconomics and industrial organization play a crucial role in providing uniformity, guidance and stability to competition policy.65 However, even a ‘purely economics-based’ approach to antitrust policy would lead to divergence as economic results constantly differ.66 There is no one size fits all standard to competition policies. Using Ezrachi’s analogy, competition policy should be better seen as a sponge that has a political core, an economic membrane and external by-passes. The core is jurisdiction-specific and encompasses both general values on the maximization of consumer welfare and national social and political priorities that shape local enforcement.67 Incorporating multiple local political priorities may lead to arbitrary and unpredictable enforcement, undermining the legitimacy of competition agencies.68 Thus, the second layer is an economic membrane that exerts external pressure on the political core.69 Economics provides a lingua-franca to competition authorities through a homogeneous rationale and benchmark that prevents excessive expansion of competition policy, increases predictability and facilitates convergence. Finally, there are explicit external political by-passes—clear political choices that favour other social priorities over the enforcement of ‘welfare maximizing’ competition policy.70 This political core is where the EU/US divide on data protection helps explain part of the conflicts taking place between both jurisdictions. As seen above, Europeans are wary of private (and public) institutions amassing personal data, leading the EU as a community to codify a fundamental right to data protection that empowers institutions to oversee the gathering, processing, and using of personal information.71 Antitrust policies should reflect the changes taking place at various levels of European policymaking, as regulators adapt enforcement to the priorities of Europe as a society. This translates into the EU having both the political motivation and the necessary toolkit to push for both the formal and informal integration between privacy and competition policy. Formal integration takes place whenever antitrust policies are explicitly used to address data protection issues—as the German Facebook case below demonstrates. Informal integration may take place whenever concerns about the power of data companies generally encourages regulators to act against such firms (even if not necessarily data related) as a way to rein-in their economic power—with the Google Shopping case as another potentially good example. The interconnection of both policies should create an ‘amplifying effect’ that will drift Europe further away from the US, exacerbating transatlantic tensions. One has to note that this ‘political motivation’ does not imply that all enforcement action against data companies is politically motivated, something that would equate protectionism. On the contrary, what this article defends is that Europe as a jurisdiction has developed a legal framework that encourages the strong regulation of data markets as a way to protect fundamental rights. Part of this may come through antitrust regulators’ acting against the economic power of data companies. There are important links between antitrust and data protection, leading to a growing debate in academia,72 the general press,73 and case law74 on the role of data as key asset in information markets. By regulating a key input, data protection policies shape data markets.75 Limits on data gathering, processing and use established by regulations outline the framework in which companies operate, develop new products and compete to attract demand, among others. In addition, data feedback loops may easily entrench market-power by increasing barriers to entry and switching costs, strengthening network effects, economies of scale and scope and others.76 Antitrust authorities, tasked with assuring the proper functioning of markets, will ultimately address what role the access to and control of user data plays in these markets. In doing so, they will also consider how effective are antitrust remedies in addressing data concerns.77 This is better seen as a regulator’s endogenous decision that reflects both the political climate in which he operates and the toolkit at his disposal—leading different regulators to opt for different solutions. As a result, it is feasible that European antitrust policymakers’ actions partially reflect concerns regarding the economic power of companies that handle large amounts of personal data. In the US, the response may be different, as local preferences and available tools are different. In other words, if agencies are ‘continually engaged in a process of accumulating and spending political capital’ when taking enforcement decisions,78 European regulators have incentives to increasingly act to reign-in, through all means available (antitrust being an important one), on the power of data companies. In doing so, they demonstrate their alignment to political priorities and accumulate political capital to spend in other areas. The same does not hold true for American regulators operating in a political environment where similar actions entail an expenditure of political capital that may be better allocated elsewhere.79 This claim should be made with a necessary caveat that it is valid in fringe cases—that is, cases located in the ‘grey area’ where traditional economic analysis does not provide a clear answer. As mentioned in the beginning of this section, modern antitrust policies embrace economics—and the EU and the US are at the vanguard. Whenever these authorities are faced with situations where one can identify clear pro or anticompetitive effects, it is expected that they adopt similar decisions—even in cases touching on control of personal data.80 The framework proposed herein applies then in cases where theories of harm are less clear and economic reasoning can be used to justify enforcement action or acquittal decisions. This is particularly true in dominance investigations (focus of this article), where the practices under scrutiny are usually adopted by other market participants. In such circumstances, findings of violation vis-à-vis legal competition on the merits many times hinge on more subjective concepts such as lack of economic justification,81 business strategy rationale and intent to exclude,82 or presumptions of illegality if the practice is adopted by a dominant company (but legal otherwise).83 Nonetheless, one can imagine an expansion of this dynamic to other areas where economic reasoning provides less clear results, such as vertical mergers or conglomerate mergers. The German Facebook and the EU Google-Shopping dominance investigations exemplify how the combination of political setting and available toolkit lead to different results on the enforcement of competition policies in data markets between the EU and the US. Nonetheless, it is important to acknowledge that this framework aims to anticipate a widening gap in antitrust enforcement, something that limits the number of leading cases that may be presently quoted, though this number may rise quickly.84 The EU toolkit as an incubator for a formal and informal connection between competition and data protection policies The subsection above discussed how the core of competition policy in the EU may expand to include (legitimate) data protection considerations. This subsection will use the abovementioned Facebook and Google investigations to present how the EU’s competition law toolkit should prove a good incubator in which to foster a formal and an informal interconnection between data protection and antitrust. That is because Europe’s focus on market structure allows authorities to by-pass or apply presumptions to many of the challenges associated with enforcing antitrust in internet markets. As the same by-passes and presumptions are not present in the US, Americans may increasingly misconstrue the actions of their European counterparts as pure digital protectionism. More specifically, the application of a traditional, economics-based antitrust analysis to multi-sided internet markets faces several hurdles in the definition of relevant markets, assessment of market power and calculation of exclusion, efficiencies, and consumer harm.85 These are in many ways associated with the multi-sided nature of the businesses, the dynamic nature of competition in these markets, as well as the difficulties in defining relevant markets, market power and quantifying consumer harm when services are provided for free. For example, in an antitrust lawsuit against Google for abuse of dominance, the Northern District of California affirmed that there cannot be any consumer harm when services are provided for free as there is no market for free services that serves the purposes of antitrust laws.86 The EU, however, emphasizes static over dynamic competition when defining relevant markets and market power in dominance cases.87 Therefore, European authorities may define relevant markets in a more conservative manner and presume dominance at shares above 50 per cent. EU authorities also have an easier framework in which to affirm violations of antitrust rules by dominant companies. They may claim that dominant businesses such as Google or Facebook have a special obligation to assure that competition is not impaired by their actions. In addition, the EU’s more formalistic approach to unilateral behaviour allows the European Commission to presume harm to consumers as the likely result of specific policies adopted by dominant-firms, by-passing the challenges associated with the proper quantification of consumer harm. Finally, EU authorities may bring forward freedom of choice or exploitative abuses as a theory of harm that justifies antitrust claims against dominant companies. One of the most important defences available to dominant companies in the US is that they have obtained their monopoly in a lawful way, as a result of their superior product, business acumen or historical accident. European authorities, however, may ignore this line of argument by claiming that dominant companies have an obligation to behave as if they were in a competitive market, despite the path by which they reached their dominant position. In other words, European authorities are capable of prosecuting companies for the pure appropriation of consumer surplus (exploitative abuse) or for the exclusion of competitors that limits consumer choice (freedom of choice theory of harm), something that US regulators may not. Pharmaceutical companies, for example, are being subject to a growing number of exploitative abuse cases both at EU and national level.88 These features provide European authorities with a singular toolkit: using antitrust policies to answer concerns regarding the power of internet companies. In some cases, there might be a formal interconnection between antitrust and privacy protection policies. This is well exemplified by the preliminary opinion issued by the German antitrust authority89 affirming that Facebook abused its dominant position by infringing EU data protection rules. In a summary, the Bundeskartellamt affirmed that: (i) Facebook, with a 90 per cent market-share, holds a dominant position in the market for social networks, narrowly defined to exclude services such as Twitter, LinkedIn, WhatsApp or Instagram; (ii) as a dominant company, it is subject to stricter obligations that prevent it from exploiting consumers; and (iii) it has abused this dominant position by imposing exploitative business terms to consumers that violate other laws—in this particular case preventing them from ensuring their fundamental right to information self-determination (collecting more personal data than would be fair).90 Such theory of harm would be unacceptable in the US where Facebook would strongly contest market-definition, dominance, any special obligation to protect competition and affirm that, even if it charged supra-competitive prices for their services, these would be lawful given Facebook’s superior product. This easier framework to affirm antitrust violations in internet markets is also exemplified by the evolution of Google’s comparison-shopping cases on both sides of the Atlantic. Although the comparison-shopping investigation does not have a direct data protection component, the framework proposed herein demonstrates how general distrust of major data companies empowers the European Commission to take enforcement action against internet companies such as Google91—an informal connection between antitrust and data protection policies. It is somewhat telling that when considering a ‘grey case’ where a business’ conduct could be considered pro-competitive or exclusionary, regulators in the EU and the US reached opposite conclusions. In short, these cases discussed whether Google illegally benefitted its own comparison-shopping tools by assigning it a prominent place in its search results. The European Commission imposed a then record EUR 2.4 billion fine on Google92 and required the company to develop a ‘search neutral’ system which does not violate EU competition laws—something Google is now trying to implement.93 In its decision, the European Commission: (i) affirmed that general search services are an economic activity because, even if free, users pay for such services by providing their personal data;94 (ii) used mostly qualitative data to define narrow relevant markets, general search and comparison shopping search (ruling out competition with merchant websites such as Amazon and EBay);95 (iii) affirmed that Google is dominant on general search and, as such, had a special responsibility not to harm competition;96 (iv) concluded that Google has systematically given prominent placement to its own comparison shopping tools and had also demoted comparison shopping services in general search;97 and (v) concluded that as a result, Google stifled competition by imposing losses on other rivals and depriving consumers of innovation and freedom to choose alterative supplier.98 The outcome in Europe was opposite to both a similar FTC investigation (where Google’s vertical search practices were cleared) and the KinderStart private lawsuit against Google in Federal Courts, where the Northern District of California ruled out the possibility of antitrust harm arising from practices similar to those that justified Google’s European condemnation. More specifically, after a long investigation, FTC staff affirmed the legality of Google’s changes to search results, despite having found direct evidence that (i) Google demoted its rivals in shopping results; (ii) that such demotion could break rival companies; and (iii) that Google was directly using its strong position in search to force potentially competing companies to give-up assets.99 The FTC apparently overcame the initial hurdles in the definition of relevant markets and in affirming dominance by generally defining a relevant market for general search, a secondary market for vertical search services and affirmed Google is ‘clearly the dominant provider of “general search” in the United States’ with a market share of at least 66.7 per cent.100 However, although it recognized that consumers may be harmed by reduced innovation,101 the FTC affirmed that: American Courts are sceptical of antitrust harm caused by innovation and new product design features (based on Microsoft); since the Supreme Court decision on Trinko, Google would be under no obligation to assist its rivals; and concluded by saying that American Courts have been reluctant to accept section 2 cases where companies that have been legally trying to protect its market-share end up harming competitors and entrenching its market-power.102 All in all, the experience shows how the US’ less deferential legal system effectively prevented the FTC from taking the exact same course of action the European Commission adopted in Europe, where a more legalistic framework facilitates abuse of dominance condemnations.103 The FTC’s reluctance in bringing a claim appears justified when one looks at the KinderStart litigation against Google—an attempt by a private party to appeal directly to Courts (by-passing the FTC). KinderStart, a vertical search website for kids’ products and services, filed a private claim against Google for attempted monopolization and monopolization of markets in violation of section 2 of the Sherman Act—similar to the EU decision against Google. The claim was that Google manipulated its page rank algorithm to voluntarily demote KinderStart’s search rank. This decreased KinderStart’s website traffic and led to losses in both commercial and advertisement revenue. Among others, KinderStart also alleged that Google charged exorbitant prices for its ad placement services because of its market power. The lawsuit, however, was summarily dismissed by the Federal Court of the Northern District of California. In his opinion granting Google’s motion to dismiss without leave to amend, Judge Fogel affirmed that: (i) the search market was not a relevant market for the purposes of antitrust laws because users or companies do not pay to be listed on general search results;104 (ii) Google would have no specific intention to monopolize as KinderStart did not prove that it competed with Google;105 (iii) the Supreme Court’s Trinko decision reaffirmed that simply charging high prices is not a violation of antitrust laws;106 (iv) although KinderStart showed that Google had a market share in excess of 75 per cent in the search market, this alone was not proof that Google had market power to violate antitrust laws;107 (v) that even if KinderStart were removed from the market, this is not an injury that antitrust laws are trying to prevent unless the company can prove that this removal harms consumer welfare;108 and, finally, that (vi) Google is under no obligation to aid a potential rival and it has no obligation to deal with KinderStart (Google is not an essential facility).109 This comparison exemplifies how the European toolkit is well-placed to overcome the challenges faced by antitrust plaintiffs when filing lawsuits against internet companies in the US. IV. THE WAY AHEAD: CONVERGENCE OR DIVERGENCE? So far, this article presented how the differences between the American and European approaches to data protection provide EU regulators with motivation to strengthen antitrust enforcement in data markets. Moreover, it argued that once this process starts, the unique features of European antitrust policy will prove a perfect incubator, so that antitrust cases against US tech companies for dominance violations should grow. Americans do not share and may not understand neither the motivation nor the antitrust tools employed in the EU.110 As the Atlantic divide on antitrust enforcement widens (and given that actual protectionist policies are on the rise)111 calls of digital protectionism should afloat. Tensions run both ways, as Europeans may also be startled by American complaints against what they see as a regular application of the rule of law.112 With a trade war between the EU and the US looming after a series of trade sanctions,113 increased strains between two of the world’s leading trade and security partners can do little good.114 The digital economy is a sensitive area and the EU/US safe harbour for data transfer is proof of the damage that may arise from disputes. The first Safe Harbor came after a major trade conflict between the EU and the US over personal data.115 By striking it down, EU Courts’ placed thousands of American and European companies in disarray,116 reason why business leaders in both jurisdictions welcomed the swift conclusion of the Privacy Shield.117 The challenge remains, however, on whether it is desirable or possible to bridge such significant cultural differences, or at least develop clear mechanisms that prevents tensions arising from pure misunderstanding. This remains a contingent question. On one side, convergence may never be necessary. It is perfectly reasonable and may even be optimal that different legal systems will provide different solutions to challenges of a new internet era, forcing agents to adapt to the norms of a given jurisdiction.118 Lack of convergence is burdensome and may increase the cost of doing business across the Atlantic,119 but the so far successful implementation of the ‘right to be forgotten’ experience in Europe demonstrates that both markets are large enough to justify companies adopting different solutions. The risk is that shifts in market behaviour may lead to the ‘Brussels’ effect’ and the export of stricter standards,120 something that may trigger unpredictable reactions by US authorities facing loss of sovereignty. On the other, the safe harbour demonstrates how convergence is possible if parties move to bridge differences. As there is more to explore from an academic perspective in this second scenario, this section will focus on that. Bringing together such disparate regimes will require both political motivation and a coherent framework. This part argues that: (i) convergence efforts will require a balancing of the role that economics plays in antitrust enforcement on internet markets on both sides of the Atlantic; and (ii) that recent EU reforms open a window of opportunity for this to happen. In addition, it presents data portability as a mitigating measure that companies may explore to decrease tensions while and if converge does not take place. Convergence requires rethinking where and how to apply economics A common framework It is beyond the scope of this article to provide a detailed plan for an ideal antitrust policy for internet markets—this matter certainly deserves and is being subject to in-depth studies of its own.121 Notwithstanding, the multiple variations of Google case-law shows how a hybrid US/EU competition policy may be a good framework to address the challenges of the internet economy. In particular, this policy would ideally incorporate the EU’s more flexible approach to market definition and dominance with the US’ more rigid approach to market exclusion and harm. The lack of clear prices, the multi-sided nature of the businesses and the ever-shifting boundaries of markets will require American regulators to be more flexible in terms of the evidence required in the definition of relevant markets and on the assessment on whether companies possess market power.122 The FTC seemed to be heading in that direction in its Google analysis, when it defined distinct relevant markets for general search and vertical search without the need for formal Small but Significant Non-transitory Increase in Prices (SSNIP)/cross-elasticity, critical loss or other tests.123 Equally, the definition of dominance and foreclosure may need to rely on more general evidence on switching costs, barriers to entry, and others, as plaintiffs will hardly be able to present direct quantifiable evidence of price increases or output reduction in markets with zero pricing or multi-sided characteristics.124 An analysis similar to the KinderStart case, affirming that no antitrust market exists when prices are zero, cannot instruct an effective antitrust policy in an age where services are paid through a combination of data and attention.125 On the other hand, the EU’s increasing focus on ‘consumer choice’ is over-inclusive. Creative destruction is the essence of competition and key to economic development.126 This is particularly true in digital markets, where network effects are welfare enhancing and businesses are constantly improving their products with new features that exclude potential rivals in lateral products but that, normally, benefit consumers.127 EU dominance investigations are too formalistic, especially on foreclosure assessment.128 An optimal policy then will need to include at least part of the US approach to using economics as a tool to properly identify exclusion.129 A good example of how this compromise between both jurisdictions can work in practice is the analysis of another Google litigation, now involving the UK mapping company Streetmap. In a summary, Streetmap accused Google of abusing its dominant position in general search to leverage its Google Maps business (and exclude Streetmap) by linking search queries with map search results. This blending of vertical and horizontal search results is similar to the other Google Shopping cases discussed above. In a detailed opinion, which included expert testimony by economists and technology specialists, the British High Court dismissed the case. It affirmed that while Google’s conduct could have contributed to the exclusion of Streetmap from the market, it did not entail an abuse of dominance and, if it did, it was objectively justified.130 More specifically, the opinion initially accepted a presumption of Google’s dominance in search131 and affirmed that a condemnation depended on whether plaintiffs could prove anticompetitive foreclosure.132 During trial, the Court found that: (i) Google systematically gave prominent placement to its own products at the expense of Streetmap;133 and (ii) that Streetmap traffic declined significantly during the period.134 However, the Court did not find a purposeful demotion of Streetmap by Google135 (which would imply a clear intent to harm competition). As a result, rather than affirming a presumption of harm connected with Streetmap’s exclusion from the market, the Court found that Streetmap’s decline was mostly due to inferior quality.136 It also affirmed that Google had an objective justification behind the integration of Google Search and Maps, and that Google could not structure its products in a less anticompetitive alternative.137 The Streetmap case is particular in many ways, not least because Google apparently had a much superior product and UK Courts are in between the US and the EU in terms of methodology. Nonetheless, it can demonstrate how the approach proposed herein does not require the EU or the US to completely abandon the core principles that instruct their antitrust policies for some convergence to take place. Both jurisdictions can maintain, for example, different thresholds for the characterization of dominance, market foreclosure or consumer harm, limit or expand efficiency defences for practices and maintain a more energetic enforcement in specific areas, such as those relating to the formation of the Single Common Market in the EU. This framework leaves enough flexibility for both sides to adapt their political priorities while speaking a common language in terms of methodology.138 A window for convergence Convergence, however, does not depend solely on the existence of a common framework but also on political motivation and opportunity. Politics is responsive to random events, so different triggers could be used to motivate a push for convergence.139 Institutional changes, however, are more predictable and provide more concrete and coherent possibilities for integration. In this sense, a potential window may arise as the EU implements reforms aimed at increasing private antitrust litigation. The differences in judicial behaviour between the EU and the US are partly based on institutional design features of each jurisdiction and their focus on public or private litigation. The Chicago push was connected with the need to restrict private enforcement of competition laws in the US, where private parties lead antitrust litigation.140 High litigation costs and treble damages may prohibitively raise the cost of doing business, in particular in the case of unilateral conduct where ‘grey cases’ abound. Courts, therefore, resorted to economics and other reasoning141 as gatekeepers to limit private litigation opportunities.142 Opposingly, the EU relies on an administrative system of antitrust enforcement. This modifies Courts’ incentives when setting judicial precedents, as they may rely on sophisticated gatekeepers to ensure that antitrust laws will not over-burden private parties by flooding them with dubious cases. It is rational for EU Courts to adopt more formal tests, deferring to specialized bureaucracies the complex economic assessments surrounding unilateral conduct.143 The EU system may change with the implementation of private damages Directive 2014/104/EU.144 While these changes have important limitations,145 increased private litigation should encourage Courts to develop better screening mechanisms to ensure that only actually harmed parties receive compensation. It is not surprising that the European Commission issued a guidance paper on how Courts should quantify harm in private antitrust lawsuits that makes use of diverse economic tools to calculate damages, pass-on defences, and others.146 The use of the term ‘may’ above is because EU Courts might adopt two different standards of analysis, one for public and another for private parties. For historical reasons, this did not take place in the US where the standards are the same for the FTC and for private litigators.147 If this dual-standard takes place, the convergence window created by this institutional change will be limited. It is not a coincidence that Streetmap exemplifies a potential convergence movement. While one may easily rely on the EU’s more formal findings of dominance, the Court would step in fragile soil by simply presuming harm to Streetmap based on limited freedom of choice—the nature of the claim forced it to assess whether Streetmap’s failure was connected with Google’s actions. As more cases arise, judicial precedent will inevitably develop.148 Data portability as a mitigating factor While and if convergence does not take place, parties caught amidst this transatlantic rift may resort to some mitigating factors to help ease tensions and potential exposure. As concerns are mostly regarding American companies under threat of action by European regulators, this section defends data portability as a pragmatic and unilateral change these companies can adopt to address some of the concerns relating to data protection in the EU.149 Given the growing importance given to ‘freedom of choice’ as a theory of harm, American companies would do well to pay specific attention to how the features of their products impact: (i) consumers’ freedom to migrate to different, competing products; and (ii) interoperability between dominant platforms and products from competitors. Indeed, the EU has a long history of presenting antitrust charges against both American and non-American companies whenever specific features of product design hinder consumer freedom of choice and the development of market alternatives. This is one of the main theories of harm behind the Microsoft/Windows Media Player condemnation, where some of remedies required Microsoft to both develop a Windows version without a pre-installed Media Player and provide interoperability information to competitors. Similar concerns may be found in more recent cases. All the investigations opened against Google have a strong limit the freedom of choice component to it150 and the Microsoft/LinkedIn merger only received EU approval after Microsoft agreed to behavioural commitments that prevent it from discriminating competitors and ultimately restrict freedom of choice.151 Assuring interoperability translates well with European concerns that super-dominant companies are not unduly restricting market entry through illegal action. US tech Companies could, for example, have an institutionalized channel through which rivals may require access to certain features of the platform, raising awareness to potential restrictive practices they did not previously recognize. However, increased interoperability initiatives are insufficient to remedy pure excessive pricing prosecutions like the one Facebook is currently facing in Germany, and may even risk leading to data protection violations of its own. In such cases, US tech companies may want to emphasize the role of data portability mechanisms as a way to limit customer lock-in. Authorities in Europe are getting more and more concerned about the role of data: (i) as a barrier to entry; and (ii) in increasing switching costs. A well-established data portability system could be a defence argument to both claims. Major platforms such as Google and Facebook already have systems which allow for the extraction of data, the same being said about specific data scraping software which are made available for companies. However, these systems currently only allow for the download of limited data, are not widespread and users remain largely misinformed about the existence of these functionalities.152 Article 20 of the GDPR tries to change this dynamic by creating a right to data portability that the EC believes ‘will support the free flow of personal data in the EU and foster competition between controllers’.153 Instead of fighting these provisions, companies could embrace this as a unique opportunity to collaborate with their European counterparts. They could, for example, develop a joint-standard to be used across the industry, which would facilitate both downloading personal data and also transferring it to third-parties (when required by the user).154 This would demonstrate a commitment to upholding European values and weaken exploitative abuses claims by authorities. In exchange, European authorities could at least consider this an important mitigating factor in an eventual prosecution. V. CONCLUSION Recent fears of a full-blown trade war demonstrate how market protectionism is widespread and on the rise. This paper cannot completely rule out protectionism as a force behind Europe’s approach to data protection and antitrust enforcement.155 However, this article adds a different perspective by arguing that those initiatives reflect, at least in a relevant part, historical differences in the shaping of data protection and competition policies in the EU and the US. As Europeans explore more in depth the interconnection between both policies (currently still at its early stages), the differences between both jurisdictions should only widen. Nonetheless, if the current USD 250 billion worth of digital trade156 and the rapid (if problematic) negotiations of a new EU/US Safe Harbor for data transfers imply something is that companies cherish some convergence or at least proper rationalization in this arena. While it may be optimal for different societies to have at least partially different rules (including in relation to competition and data protection policies in digital markets), this divergence can become burdensome and lead to unexpected trade conflicts. American authorities and companies need to consider historical differences if they intend to influence policy-making in Europe (and vice-versa). If not out of respect for European traditions, at least due to a pragmatic view on international relations. Otherwise, EU authorities can easily resort to these cultural distinctions as an underpinning to disqualify American opinions as disconnected from European realities and values—failing to incorporate legitimate concerns in local policy making. The same holds true for Europeans, who must do more to dispel concerns of political targeting. A failure by both sides to understand their significant policy differences may hurt businesses and consumers alike. All the suggestions proposed herein are just one more input to the complex topic of how to shape antitrust and data protection policies to address the concerns of the digital age, a field that will still be receiving contributions for many years to come. Acknowledgement I would like to thank Randal Picker, Lior Strahilevitz, Lisa Bernstein, Daniel Sokol, Ariel Ezrachi, Lars Kjølbye, Thorsten Schiffer, Riccardo Siemens, Patrick Todd, Caio Mario Pereira Neto, two anonymous reviewers, participants of the University of Chicago Legal Scholarship Workshop, participants of the 12th ASCOLA Conference, participants of UChicago’s JSD Colloquium and participants of the 4th ASCL YCC Workshop on Comparative Business and Financial Law for interesting discussions and comments. I would also like to thank Latham & Watkins LLP for kindly accepting me as a visiting lawyer in their Brussel’s office for an internship while writing this piece. Latham & Watkins represents many American technology firms, including Microsoft, Apple and Facebook. I was laterally involved in the Facebook German investigation and in the Microsoft/LinkedIn EU merger review. Due to its limitation, I do not believe this involvement has biased me in any manner. This article is based solely on public data. Footnotes 1 Liz Gannes, ‘Obama Says Europe’s Aggressiveness Toward Google Comes From Protecting Lesser Competitors’ (Re/code, 14 February 2015) <https://www.recode.net/2015/2/13/11559038/obama-says-europes-aggressiveness-towards-google-comes-from> accessed 21 July 2018. 2 Steven Overly, ‘Trump Attacks EU for Google Antitrust Fine’ (POLITICO, 19 July 2018) <https://www.politico.eu/article/donald-trump-attacks-eu-over-google-antitrust-fine-margrethe-vestager/> accessed 21 July 2018. 3 Anu Bradford, Robert Jackson and Jonathon Zytnick, ‘Is EU Merger Control Used for Protectionism? An Empirical Analysis’ (2018) 15 Journal for Empirical Legal Studies 165, 166. The term ‘antitrust’ here is used in its American conception, encompassing all areas of competition policy. 4 For example, A US Senator accused Europe of using antitrust cases against US tech companies as ‘nationalistic policies’, Jemima Kiss, ‘US Senator Accuses Europe of Using Antitrust Cases to Disguise Tech Interests’ The Guardian (Las Vegas, 8 January 2016) 1. The Financial times described how US companies are under attacked in Europe in ‘data protection and competition policy’. Rochelle Toplensky, Duncan Robinson and Madhumita Murgia, ‘Facebook Faces More Hurdles after Europe Fine’ The Financial Times (Brussels and London, 18 May 2017) 1. See also Mark Scott, ‘Tech Firms See Protectionism in E.U. Plan to Unify Market’ New York Times (Brussels, Belgium, 14 September 2016) B1. 5 See Members of the European Parliament, ‘Statement on “Digital Protectionism”’ <http://www.marietjeschaake.eu/wp-content/uploads/2015/09/2015-09-22-MEPs-Statement-on-Digital-Protectionism.pdf> accessed 21 July 2018. 6 See Sam Schechner and Natalia Drozdiak, ‘US Tech Giants Meet Their Nemesis’ Wall Street Journal (Paris, France and Brussels, Belgium, 4 April 2018) 1. 7 Sarah Lyall, ‘Who Strikes Fear Into Silicon Valley? Margrethe Vestager, Europe’s Antitrust Enforcer’ The New York Times (Copenhagen, Denmark, 6 May 2018) 1. 8 Such as four antitrust investigations against Google and Facebook, the introduction of an overarching data protection regulation and even changes to national antitrust laws, as will be better explored below. 9 See, for example, Trump’s declarations and Politico’s coverage of the first Google fine, saying ‘The case is bound to stoke tensions between Brussels and Washington, where some politicians view the Commission’s antitrust enforcement as thinly-veiled protectionism.’ Nicholas Hirst, ‘EU’s Vestager Hits Google with €2.42 Billion Fine’ POLITICO (27 June 2017) <https://www.politico.eu/article/vestager-hits-google-with-e2-42-billion-fine/> accessed 21 July 2018. 10 See statements by Commissioners Terrell McSweeny, ‘Big Data: Individual Rights and Smart Enforcement - Remarks of Commissioner Terrell McSweeny’ <https://www.ftc.gov/public-statements/2016/09/big-data-individual-rights-smart-enforcement> accessed 21 July 2018, p 2. and Margrethe Vestager: ‘[I]t’s not enough for competition authorities to work well in isolation. We also need to work together. … As companies go global, so must competition enforcers.’ Margrethe Vestager, ‘Competition for a Fairer Society’ (European Commission - European Commission, 20 September 2016) <http://ec.europa.eu/commission/2014-2019/vestager/announcements/competition-fairer-society_en> accessed 21 July 2018. 11 See James Q Whitman, ‘The Two Western Cultures of Privacy: Dignity versus Liberty’ (2004) 113 The Yale Law Journal 1151. 1161. 12 Paul M Schwartz, ‘The EU-US Privacy Collision: A Turn to Institutions and Procedures’ (2013) 126 Harvard Law Review 1966, 1176; Lior Strahilevitz, ‘Toward a Positive Theory of Privacy Law’ (2013) 126 Harvard Law Review 2010, 2036–37. 13 See also Paul M Schwartz and Karl-Nikolaus Peifer, ‘Transatlantic Data Privacy Law’ (2017) 106 The Georgetown Law Journal 115. 14 In doing so, this article follows others such as ibid. and Anu Bradford, ‘The Brussels Effect’ (2012) 107 North Western University Law Review 1, 15–16, 23. An important new State regulation is the California Consumer Privacy Act of 2018. While this represents the foremost attempt by a US State to regulate data transfer and processing, it still falls short of the EU safeguards for a brief outline on how these systems compare see n 33 below. 15 Whitman (n 11) 1171–89. 16 ibid 1160–62. The European view is similar to the exposed by Samuel D Warren and Louis D Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193, but that found limitations in the US due to conflicts with other constitutionally protected rights, such as freedom of speech. 17 It is also affirmed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms from 1950, with a similar text. 18 Convention 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981. 19 The EUR-Lex – 31995L0046 – Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data 1995 (Official Journal L 281 , 23/11/1995 P 0031 - 0050). Daniel J Solove and Woodrow Hartzog, ‘The FTC and the New Common Law of Privacy’ [2014] Columbia Law Review 583, 592–93. Schwartz (n 12) 1969–71. 20 Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data 2016 (OJ L 119, 452016, pp 1–88). 21 Landmark cases include Case C-101/01 Criminal Procedure Against Bodil Lindqvist [2003] CJEU ECLI:EU:C:2003:596; Case C-73/07 Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy [2008] CJEU – Grand Chamber ECLI:EU:C:2008:727; Case C-203/15 Tele2 Sverige AB v Post- och telestyrelsen and Secretary of State for the Home Department v Tom Watson and Others [2016] CJEU – Grand Chamber ECLI:EU:C:2016:970; Application 931/13 – Case of Satakunnan Markkinapörssi oy and Satamedia oy v Finland (European Court of Human Rights – Grand Chamber). Case C-362/14 Maximilian Schrems v Data Protection Commissioner [2015] CJEU ECLI:EU:C:2015:650, Case C-131/12 Google Spain SL and Google Inc v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González [2014] CJEU (Grand Chamber) ECLI:EU:C:2014:317. 22 Schwartz and Peifer (n 13) 121–23. 23 Whitman (n 11) 1211–16. 24 Richard Alan Clarke and others, Liberty and Security in a Changing World: Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies (Office of the Director of National Intelligence 2013), 57–58, 64. 25 Olmstead v United States (1928) 277 SCt 438 (Supreme Court), p 478 (Brandeis, J, dissenting), Katz v United States (1967) 389 SCt 347 (Supreme Court). This may include, for example, one’s phone (Riley v California (2014) 134 Ct 2473 (Supreme Court)) or the use of GPS to track car movements (US v Jones (2012) 132 Ct 945 (Supreme Court)). 26 See Daniel J Solove and Paul Schwartz, Information Privacy Law (6th edn, Wolters Kluwer 2018), Chapter 3, quoting, among others, Cox Broadcasting Corp v Cohn (1975) 420 SCt 469 (Supreme Court); Florida Star v BJF (1989) 491 SCt 524 (Supreme Court). 27 For example, the Privacy Act 1974 (5 USC 552a) only addresses governmental collection and retention of data. 28 Solove and Hartzog (n 19) 587; Schwartz (n 12) 1975. 29 Omri Ben-Shahar and Lior Jacob Strahilevitz, ‘Contracting over Privacy: Introduction’ (2016) 45 Journal of Legal Studies S1, S6. 30 Strahilevitz (n 12) 2036. Under section 5 the FTC does not have the power to fine companies, and most of the enforcement action is through fear of public exposure and threats of a costly litigation. 31 David A Hyman and William E Kovacic, ‘Why Who Does What Matters: Governmental Design and Agency Performance’ (2013) 82 George Washington Law Review 1446, 18–19, 51–52. Solove and Hartzog (n 19) 585. The FTC focuses on ‘unfair or deceptive acts or practices in or affecting commerce’. Section 5 Federal Trade Commission Act 1914 (15 USC §§ 41–58, as amended), see also Solove and Hartzog (n 19) 598–606. 32 Federal Trade Commission, ‘Privacy Online: Fair Information Practices in the Electronic Marketplace - A Report to Congress’ <https://www.ftc.gov/reports/privacy-online-fair-information-practices-electronic-marketplace-federal-trade-commission> accessed 21 July 2018. Solove and Hartzog (n 19) 592 Federal Trade Commission, ‘FTC Policy Statement on Unfairness’ <https://www.ftc.gov/public-statements/1980/12/ftc-policy-statement-unfairness> accessed 21 July 2018. 33 This system remains in place even in newer attempts to regulate data protection in the US, such as the California Consumer Privacy Act of 2018. In there, most of the safeguards are aimed at ensuring that users have given clear consent and are aware of the different forms of data collection, processing and sale. Consumer rights are mostly associated with the power to refuse data sales without being discriminated in terms of worst products. The California Act has no protections such as a right to be forgotten, no mention of privacy by design and by default nor it grants regulators the power to fine companies for violations around data protection. It mostly ensures statutory damages in cases of data breaches or extractions. The GDPR goes much further in terms of both consumer rights and granting to regulators the powers to intervene in data markets. 34 It affirms that: ‘1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.’ 35 Art 83(5) of the GDPR. This brings privacy protection closer to antitrust policies in terms of regulatory policy. 36 See, in general, Anupam Chander, ‘How Law Made Silicon Valley’ (2013) 63 Emory Law Review 639, and Solove and Hartzog (n 19) 591–92, on why the internet industry greatly favours de-regulation. 37 Richard A Posner, ‘The Chicago School of Antitrust Analysis’ (1979) 127 University of Pennsylvania Law Review 925, 928. 38 Michael D Whinston, Lectures on Antitrust Economics (MIT Press Books 2008) 6. 39 See the Supreme Court decisions in Continental TV, Inc v GTE Sylvania Inc (1977) 433 SCt 36 (Supreme Court), State Oil Co v Khan (1997) 522 SCt 3 (Supreme Court) and Leegin Creative Leather Products v PSKS, Inc (2007) 127 SCt 2705 (Supreme Court) and a somewhat victory in Jefferson Parish Hospital Dist No 2 v Hyde (1984) 466 SCt 2 (Supreme Court). 40 Herbert Hovenkamp, The Antitrust Enterprise: Principle and Execution (Harvard University Press 2009) 38–39; Jorge Padilla and David S Evans, ‘Designing Antitrust Rules for Assessing Unilateral Practices: A Neo-Chicago Approach’ (2005) 72 University of Chicago Law Review 74; Einer Elhauge, ‘Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory’ (2009) 123 Harvard Law Review 397, 400. 41 As shown by the most recent Supreme Court decision in Ohio et al v American Express Co et al [2018] Supreme Court No 16–1454, Ct, which significantly raised the burden plaintiffs need to meet when challenging conducts adopted by dominant firms in multi-sided platforms. 42 Christian Ahlborn and Carsten Grave, ‘Walter Eucken and Ordoliberalism: An Introduction from a Consumer Welfare Perspective’ (2006) 2 Competition Policy International 199/200. John Vickers, ‘Abuse of Market Power’ (2005) 115 Economic Journal F244, F246/247. Silvia Beltrametti, ‘Capturing the Transplant: US Antitrust Law in the European Union’ (2015) 48 Vanderbilt Journal of Transnational Law 1173–78; Paul Behrens, ‘The Consumer Choice Paradigm in German Ordoliberalism and Its Impact upon EU Competition Law’ (2014) Discussion Paper 01/14 Europa-Kolleg Hamburg 24–26. 43 Ahlborn and Grave, ibid 199/200; Vickers, ibid F246/247; Beltrametti, ibid 1173–78; Behrens, ibid 24–26. Some challenge how decisively was the ordoliberal influence in EU Competition policy, see Pablo Ibáñez Colomo, ‘Beyond the “More Economics-Based Approach”: A Legal Perspective on Article 102 TFEU Case Law’ (2016) 53 Common Market Law Review 709, 4. While it is not the goal of this article to settle this debate, one has to point-out that the ordoliberal framework seem to fit well with the current status of EU Competition Law regarding dominant firms, reason why it is mentioned herein. 44 Ahlborn and Grave (n 42) 200/201; Beltrametti (n 42) 1176–78. 45 ibid 199–202 and 204–05. 46 There is another important debate about consumer versus total welfare, though it impacts less directly this discussion. See, Roger D Blair and D Daniel Sokol, ‘Welfare Standards in US and EU Antitrust Enforcement’ (2012) 81 Fordham Law Review 2497. 47 ABA Section of Antitrust Law, Antitrust Law Developments (Eighth, American Bar Association 2017) 229–32. See also United States v Aluminum Co of America (1945) 148 F.2d 416 (2nd Circuit). United States v EI du Pont de Nemours & Co (1956) 351 SCt 377 (Supreme Court); Spirit Airlines, Inc v Northwest Airlines, Inc (2005) 431 F.3d 917 (6th Circuit); Conwood Co, LP v US Tobacco Co (2002) 290 F.3d 768 (6th Circuit). 48 ABA Section of Antitrust Law (n 47) 231–32, quoting Bailey v Allgas, Inc (2002) 284 F.3d 1237 (11th Circuit); AD/SAT, Div of Skylight, Inc v Associated Press (1999) 181 F.3d 216 (2nd Circuit); United Air Lines, Inc v Austin Travel Corp (1989) 867 F.2d 737 (2nd Circuit). 49 Ahlborn and Grave (n 42) 207. Daniel J Gifford and Robert T Kurdle, The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy (University of Chicago Press 2015) 10–11. See also Case C-62/86 - AKZO v Commission [1991] CJEU ECLI:EU:C:1991:286, para 60. 50 Case C-95/04 - British Airways v Commission [2007] CJEU ECLI:EU:C:2007:166, 2007 2331. 51 See Case C-322/81 - Michelin/Commission (Michelin I) [1983] CJEU ECLI:EU:C:1983:313, 1983 3461, para 57; and Case C-280/08 P - Deutsche Telekom v Commission [2010] CJEU ECLI:EU:C:2010:603, para 176. Case C-413/14 P – Intel Corporation Inc v the European Commission [2017] CJEU ECLI:EU:C:2017:632, para 135. 52 Robert O’Donoghue and Jorge Padilla, The Law and Economics of Article 102 TFEU (2nd edn, Hart Publishing 2013), 206–08. Ahlborn and Grave (n 42) 208. See Case C-280/08 P – Deutsche Telekom v Commission, ibid at 125/126. 53 Vickers (n 42) F247. 54 Ahlborn and Grave (n 42) 208; Vickers (n 42) F248–F253. Gifford and Kurdle (n 49) 14–17, 36; Patrick F Todd, ‘Out of the Box: Illegal Tying and Google’s Suite of Apps for the Android OS’ (2017) 13 European Competition Journal 1, 69–75. 55 Christian Ahlborn and David S Evans, ‘The Microsoft Judgment and Its Implications for Competition Policy towards Dominant Firms in Europe’ (2009) 75 Antitrust Law Journal 887, 902; and Francisco Marcos, ‘The Prohibition of Single-Firm Market Abuses: US Monopolization versus EU Abuse of Dominance’ [2017] International Company and Commercial Law Review 8. 56 O’Donoghue and Padilla (n 52) 269–70. Case T-203/01 Michelin v Commission (Michelin II) [2003] CFI ECLI:EU:T:2003:250, 2003 4071; Case C-95/04 British Airways v Commission (n 50); 88/138/EEC Eurofix-Bauco v Hilti (1988) 1988 19 (European Commission); Case 85/76 – Hoffmann-La Roche v Commission [1979] CJEU ECLI:EU:C:1979:36, 1979 461; Case T-65/98 Van den Bergh Foods v Commission [2003] CFI ECLI:EU:T:2003:281, 2003 4653 and Case T-201/04, Microsoft v Commission [2007] CFI ECLI:EU:T:2007:289. The CJEU decision in Intel v Commission (n 51) and the potentially larger role played by the ‘As Efficient Competitor’ test complicates this. Nonetheless, the CJEU affirmed the prima facie presumption of harm and the special responsibility of dominant companies in ensuring that their practices do not harm competition (ibid paras 132–40). These presumptions still tilt the playing field in favour of the Commission in findings of infringement. 57 Art 102(a) TFEU. See also Richard Whish and David Bailey, Competition Law (8th edn, OUP 2015) 759–66. 58 O’Donoghue and Padilla (n 52) 732. There are challenges in the prosecution of exploitative abuses (eg cost determination, incentives given to firms, comparison across products, etc), so case law is somewhat limited—but exists (see Case C-27/76 United Brands v Commission [1978] CJEU ECLI:EU:C:1978:22, 1978 207; Case 26/75 General Motors Continental NV v Commission [1975] CJEU ECLI:EU:C:1975:150; Case 226/84 British Leyland v Commission [1986] CJEU ECLI:EU:C:1986:421, 1986 3263). European authorities are clarifying a methodology which allows them to bring more cases and authorities have vowed to enforce price abuses (See Case C-177/16 Biedrība ‘Autortiesību Un Komunicēšanās Konsultāciju Aģentūra – Latvijas Autoru Apvienība’ v Konkurences Padome [2017] CJEU ECLI:EU:C:2017:689 and Margrethe Vestager, ‘Protecting Consumers from Exploitation’ (European Commission - European Commission, 21 November 2016) <http://ec.europa.eu/commission/2014-2019/vestager/announcements/protecting-consumers-exploitation_en> accessed 21 July 2018). 59 See United States v Aluminum Co of America (n 47) and Verizon Communications Inc v Law Offices of Curtis V Trinko, LLP (2004) 540 SCt 398 (Supreme Court). 60 See, generally, Paul Nihoul, Nicolas Charbit and Elisa Ramundo, Choice - A New Standard for Competition Law Analysis? (1st edn, Concurrences 2016). Behrens (n 42); Paul Nihoul, ‘Freedom of Choice – The Emergence of a Powerful Concept in European Competition Law’ (2012) 3 Concurrences Review 55, quoting cases Case C-202/07 P France Telecom v Commission [2009] CJEU ECLI:EU:C:2009:214, 2009 2009; Case T-201/04, Microsoft v Commission (n 56); Case C-322/81 Michelin/Commission (Michelin I) (n 51). 61 Behrens (n 42) 27–32. 62 Andrew I Gavil, William E Kovacic and Jonathan B Baker, Antitrust Law in Perspective: Cases, Concepts, and Problems in Competition Policy (Thomson/West 2008) 639–40, 666–70. 63 Ariel Ezrachi, ‘Sponge’ (2016) 5 Journal of Antitrust Enforcement 49, 2, 6; David A Hyman and William E Kovacic, ‘Institutional Design, Agency Life Cycle, and the Goals of Competition Law’ (2012) 81 Fordham Law Review 2163, 2170–72. Vestager affirmed: ‘The second question is: Does competition enforcement relate to wider political priorities? And does it inform regulatory and other action taken to implement such priorities? Again, the answer is: Yes, it does.’ Margrethe Vestager, ‘The Future of Competition’ (European Commission - European Commission, 2 October 2015) <https://ec.europa.eu/commission/2014-2019/vestager/announcements/future-competition_en> accessed 21 July 2018. 64 Hyman and Kovacic (n 63) 2170–74. William E Kovacic and David A Hyman, ‘Competition Agency Design: What’s on the Menu?’ (2012) 8 European Competition Journal 527, 532–33. Examples include Europeans explicitly using antitrust to promote the common market (Alison Jones and Brenda Sufrin, EU Competition Law: Text, Cases, and Materials (6th edn, OUP 2016) 35) or the US’ Robinson-Patman Act’s prohibitions on price discrimination and the State Action and Noerr-Pennington doctrines. 65 David S Evans, ‘Why Different Jurisdictions Do Not (and Should Not) Adopt the Same Antitrust Rules’ (2009) 10 Chicago Journl of International Law 161, 167. 66 ibid 162. Simon Bishop, ‘Snake-Oil With Mathematics Is Still Snakeoil: Why Recent Trends in the Application of So-Called “Sophisticated” Economics Is Hindering Good Competition Policy Enforcement’ (2013) 9 European Competition Journal 67, 68–69. 67 Ezrachi (n 63) 4–14. 68 Hyman and Kovacic (n 63) 2170. 69 Ezrachi (n 63) 17. 70 ibid 22–25. Examples again are the State Action and Noerr–Pennington Doctrines in the US or EU specific insurance block exemptions and rules for agricultural products. 71 This is also a strategic view, as with the creation of EU Digital Single Market, Europeans have an express goal of becoming ‘a hub for data services which require both free flows and trust’. See European Commission, ‘Exchanging and Protecting Personal Data in a Globalised World - COM(2017) 7’ <http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017DC0007&from=EN> accessed 21 July 2018, 3. 72 See, generally, Maurice Stucke and Allen Grunes, Big Data and Competition Policy (1st edn, OUP 2016). 73 See ‘The World’s Most Valuable Resource - Data and the New Rules of Competition’ [2017] The Economist <http://www.economist.com/news/leaders/21721656-data-economy-demands-new-approach-antitrust-rules-worlds-most-valuable-resource> accessed 21 July 2018. 74 See the Facebook investigation taking place in Germany or M8124 - Microsoft LinkedIn (European Commission) 34–35. 75 See, generally, Randal C Picker, ‘Competition and Privacy in Web 2.0 and the Cloud’ (2008) 103 Northwestern University Law Review Colloquy 1; Randal C Picker, ‘Online Advertising, Identity and Privacy’ (2009) John M Olin Program in Law and Economics Working Paper No 475. Francisco Costa-Cabral and Orla Lynskey, ‘Family Ties: The Intersection between Data Protection and Competition in EU Law’ (2016) 54 Common Market Law Review 11 and European Data Protection Supervisor, ‘Preliminary Opinion of the European Data Protection Supervisor: Privacy and Competitiveness in the Age of Big Data - The Interplay between Data Protection, Competition Law and Consumer Protection in the Digital Economy’ <https://edps.europa.eu/sites/edp/files/publication/14-03-26_competitition_law_big_data_en.pdf> accessed 21 July 2018. 76 See the Bundeskartellamt preliminary opinion that Facebook is abusing its dominant position, where it affirms that control over data strengthens both direct and indirect network effects, increases barriers to entry and contributes to customer lock-in. Bundeskartellamt, ‘Background Information on the Facebook Proceeding’ <http://www.bundeskartellamt.de/SharedDocs/Publikation/EN/Diskussions_Hintergrundpapiere/2017/Hintergrundpapier_Facebook.html?nn=3600108> accessed 21 July 2018. (p 3) or Picker, ‘Competition and Privacy in Web 2.0 and the Cloud’ (n 75) 6–8. 77 This may not lead to a coherent framework in data protection. In many cases, the weakening of a data company’s economic power requires the sharing of such data—something that violate privacy interests. This leads to an inherent tension between data protection and antitrust and, generally, antitrust remedies are ill-equipped to address data protection concerns. See Maureen K Ohlhausen and Alexander Okuliar, ‘Competition, Consumer Protection, and the Right [Approach] to Privacy’ (2015) 80 Antitrust Law Journal 121, 155. In order to scape this tension, some regulators such as the EDPS have favoured creating a digital clearing house to coordinate the regulation of data markets in the EU. See European Data Protection Supervisor, ‘Opinion 08/2016 - EDPS Opinion on Coherent Enforcement of Fundamental Rights in the Age of Big Data’ <https://edps.europa.eu/sites/edp/files/publication/16-09-23_bigdata_opinion_en.pdf> accessed 21 July 2018. The suggested coordination, however, requires consumers starting to value more privacy. Unfortunately, current behaviour suggests that consumers still prefer the added benefits of data aggregation and free services, as shown by DuckDuckGo’s market-share of 0.2% in the US. 78 Hyman and Kovacic (n 31) 25. 79 See the repeal of the privacy protection regulations put in place by the Federal Communications Commission, which led a Financial Times report to declare the US the ‘Wild West for Personal Data’. FT Views, ‘Digital Privacy Is More than Just Opting in or Out’ Financial Times (31 March 2017) <https://www.ft.com/content/6bb17082-15f1-11e7-80f4-13e067d5072c> accessed 21 July 2018. 80 This was the case, for example, in the review of merger transactions such as Google/DoubleClick, Microsoft/Yahoo, Facebook/WhatsApp (decided before data protection gained such a prominence in the public debate) or even Microsoft/LinkedIn, where the US and EU authorities reached substantively similar conclusions. It was also the case in Bazaarvoice/PowerReviews, a data merger to create a monopoly blocked by the US DoJ, where internal documents pointed out that PowerReview was Bazaarvoice’s ‘only real competitor’, among other telling evidence (US v Bazaarvoice, Inc [2014] ND California No 3:2013cv00133, p 21). 81 As in Aspen Skiing Co v Aspen Highlands Skiing Corp (1985) 472 SCt 585 (Supreme Court). 82 Even if it is not a requirement for finding of infringement. See, for example, Case C-549/10P Tomra Systems and Others v Commission [2012] CJEU ECLI:EU:C:2012:221, paras 19–20 or Case C-52/09 Konkurrensverket v TeliaSonera Sverige AB [2011] CJEU ECLI:EU:C:2011:83, paras 88–89. 83 See, for example, W Kip Viscusi, Joseph E Harrington and John M Vernon, Economics of Regulation and Antitrust (MIT press 2005) 294. Francisco E González-Dias and John Temple Lang, ‘The Concept of Abuse’ EU Competition Law, vol V-Abuse of Dominance Under Article 102 TFEU (1st edn, Claeys & Casteels 2013) 116–22. Hence why European Courts have developed a concept of ‘special responsibility’ in cases such as Case C-322/81 Michelin/Commission (Michelin I) (n 51); Case C-280/08 P - Deutsche Telekom v Commission (n 51); Case C-12/03 P Tetra Laval v Commission [2005] CJEU ECLI:EU:C:2005:87, 2002 4381. 84 Indeed, Google has recently been fined a record EUR 4.34 Billion for its practices involving the Android operating system. Another investigation involving the AdSense platform is ongoing. See European Commission, ‘Press Release - Antitrust: Commission Fines Google €4.34 Billion for Illegal Practices Regarding Android Mobile Devices to Strengthen Dominance of Google’s Search Engine’ (18 July 2018) <http://europa.eu/rapid/press-release_IP-18-4581_en.htm?locale=en> accessed 21 July 2018. The European Commission has taken the acquisition of Shazam by Apple to Phase II, citing strong concerns in the combination of both companies’ databases (European Commission, ‘Press Release - Mergers: Commission Opens in-Depth Investigation into Apple’s Proposed Acquisition of Shazam’ (23 April 2018) <http://europa.eu/rapid/press-release_IP-18-3505_en.htm> accessed 21 July 2018). Other signs also point in the same direction. EU authorities also affirmed that control over data will be subject to scrutiny. In the meanwhile, the FTC affirmed that markets have strong incentives to prevent general harm relating to data FTC report on Consumers and Big Data, Federal Trade Commission, ‘Big Data: A Tool for Inclusion or Exclusion - FTC Report’ <https://www.ftc.gov/system/files/documents/reports/big-data-tool-inclusion-or-exclusion-understanding-issues/160106big-data-rpt.pdf> accessed 21 July 2018. 85 See, for example, OECD, ‘Rethinking Antitrust Tools for Multisided Platforms’ <http://www.oecd.org/daf/competition/Rethinking-antitrust-tools-for-multi-sided-platforms-2018.pdf> accessed 21 July 2018., part I or David S Evans and Richard Schmalensee, ‘The Antitrust Analysis of Multi-Sided Platform Businesses’ in Roger D. Blair and D. Daniel Sokol (eds), The Oxford Handbook of International Antitrust Economics, vol 1 (OUP 2014). 86 Kinderstart.com LLC v Google Inc (ND California) 4. 87 Evans (n 65) 181. 88 See Case CE/9742-13 Unfair pricing in respect of the supply of phenytoin sodium capsules in the UK (Competition and Markets Authority), Autorita Garante della Concorrenza e del Mercato, ‘A480 - Price Increases for Cancer Drugs up to 1500%: The ICA Imposes a 5 Million Euro Fine on the Multinational Aspen’ (14 October 2016) <http://www.agcm.it/en/newsroom/press-releases/2339-a480-price-increases-for-cancer-drugs-up-to-1500-the-ica-imposes-a-5-million-euro-fine-on-the-multinational-aspen.html> accessed 21 July 2018, and European Commission, ‘Press Release - Antitrust: Commission Opens Formal Investigation into Aspen Pharma’s Pricing Practices for Cancer Medicines’ (15 May 2017) <http://europa.eu/rapid/press-release_IP-17-1323_en.htm> accessed 21 July 2018. 89 While this is a German case, it is described here both because it can be grounded in European Law (see Giulia Schneider, ‘Testing Art. 102 TFEU in the Digital Marketplace: Insights from the Bundeskartellamt’s Investigation against Facebook’ (2018) 9 Journal of European Competition Law & Practice 213, 222–23) and because it may suggest a future path to be followed by the European Commission (Natalia Drozdiak, ‘EU Asks: Does Control of “Big Data” Kill Competition?’ Wall Street Journal (2 January 2018) <https://www.wsj.com/articles/eu-competition-chief-tracks-how-companies-use-big-data-1514889000> accessed 21 July 2018). 90 Bundeskartellamt (n 76) 2–4. See also Schneider (n 89) 218, 220 and 222. 91 Google faced heavy opposition from EU’s politicians and commissioners throughout the procedure and they were key in the unprecedented rejection of three commitment proposals. In addition, a key complainant was BEUC, Europe’s largest consumer protection association, who hailed the Commission’s final decision as a ‘game changer’. Part of this intervention is reflecting the fact that less than a quarter of Europeans trust search engines to protect their data, increasing calls for further government action. See Charles Arthur, ‘European Commission Reopens Google Antitrust Investigation’ The Guardian (8 September 2014) <http://www.theguardian.com/technology/2014/sep/08/european-commission-reopens-google-antitrust-investigation-after-political-storm-over-proposed-settlement> accessed 21 July 2018; BEUC, ‘Fair Internet Search - Remedies in the Google Case’ <http://www.beuc.eu/publications/2013-00211-01-e.pdf> accessed 21 July 2018; ‘Google Hit with Record $2.7 Billion Fine in EU Antitrust Case’ Reuters (27 June 2017) <http://fortune.com/2017/06/27/google-billion-fine-eu-antitrust-case/> accessed 21 July 2018; European Commission, ‘Data Protection Survey’ <http://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/Survey/getSurveyDetail/search/data%20protection/surveyKy/2075> accessed 21 July 2018. 25. 92 See European Commission, ‘Commission Fines Google €2.42 Billion for Abusing Dominance as Search Engine by Giving Illegal Advantage to Own Comparison Shopping Service - Factsheet’ (27 June 2017) <http://europa.eu/rapid/press-release_MEMO-17-1785_en.htm> accessed 21 July 2018. And Case AT 39740 Google Search (Shopping) (European Commission). 93 See Nicholas Hirst, ‘Google Submits Search Changes to EU Antitrust Regulators’ POLITICO (29 August 2017) <http://www.politico.eu/article/google-propose-search-changes-to-eu-antitrust-regulators/> accessed 21 July 2018. 94 Case AT 39740 Google Search (Shopping) (n 92) para 158. 95 It also affirmed that Google’s practices would have been abusive even if merchant websites were included in the market definition. See ibid s 5.2.2. 96 ibid paras 271 and 331. 97 ibid para 341. 98 ibid s 7.3.1. 99 The Wall Street Journal obtained a leaked confidential memo in which the FTC staffed discussed the Google investigation, see Brody Mullins, Rolfe Winkler and Brent Kendall, ‘Inside the U.S. Antitrust Probe of Google’ Wall Street Journal (19 March 2015) <http://www.wsj.com/articles/inside-the-u-s-antitrust-probe-of-google-1426793274> accessed 21 July 2018. See, in particular, p 30, Federal Trade Commission, ‘FTC Report on Google’ <http://graphics.wsj.com/google-ftc-report/img/ftc-ocr-watermark.pdf> accessed 21 July 2018. 100 See Federal Trade Commission, ‘FTC Report on Google’, ibid 60–74. In there, the FTC tries to implement a SSNIP test on the advertising side of the market to help define a relevant market of search advertising and search syndication which it would use to go against Google on the AdSense terms—an investigation also ongoing in Europe. However, and consistent to the exposed herein, the agency apparently ruled out the application of any economic test usually employed in the definition of relevant markets and dominance when making such assessments in the comparison-shopping case. 101 ibid 80. 102 ibid 82–86. 103 An interesting point raised by one of the reviewers is whether the fact that Google has been condemned for similar practices in other jurisdictions, such as India, may indicate reverse-protectionism: that is, the US is under-enforcing its antitrust policies as a way to allow the rise of Google and other data companies. While not exhausting the topic, the framework proposed herein indicates this is not the case. American reluctance to sue companies for abuse of dominance is not restricted to the technology sector. In addition, the recent decision by the Supreme Court in the American Express case, affirming the importance of relevant-market definition in multi-sided markets, vindicates the FTC’s reluctance in bringing a claim against Google. If anything, Courts would require the FTC to prove that Google’s conducts had an adverse impact on the general demand for search results and not solely on Google’s competitors in the comparison-shopping market. Nothing in the FTC’s leaked documents indicated they had any evidence of this negative impact. For the Google India condemnation, see C Nos 06 & 46 of 2014 - Shri Vishal Gupta v Google LLC and others (Competition Commission of India). For the US, see Ohio et al v American Express Co et al (n 41). 104 Kinderstart v Google (n 86) 4. 105 ibid 5. 106 ibid 7. 107 The Court pointed other factors which may also indicate Google’s market power, but affirmed that since KinderStart failed to define a relevant market, it did not have to issue an opinion on that matter. ibid 8. 108 ibid 8. 109 ibid 9–10. This is also opposite to the EU, where Courts recurrently affirmed obligations to deal if the asset is essential for competition; Marcos (n 55) 18–19. 110 An example is Apple’s CEO comparing the EU State-aid rules to Venezuela’s ‘arbitrary’ legal system and the Wall Street Journal Editorial Board affirming that these rules risked turning ‘the European Union into a banana republic on high-speed rail’. Rochelle Toplensky, ‘Margrethe Vestager, the Woman Who Took the Fight to Apple’ Financial Times (Brussles, Belgium, 8 December 2016) <https://www.ft.com/content/0055d3ea-bc06-11e6-8b45-b8b81dd5d080> accessed 21 July 2018. And ‘Vestager Gets Vindictive’ Wall Street Journal (New York, USA, 21 September 2016) 1. 111 International Chamber of Commerce, ‘ICC’s Open Market Index - 2017’ <https://iccwbo.org/publication/icc-open-markets-index-2017/> accessed 21 July 2018, 3. 112 See European Parliament members’ response to Obama: ‘The political debates on the way forward [on privacy protection] are not a ‘Transatlantic rift’ and should not be made into one. Rather they represent different views and beliefs that run right through our societies. We consider close cooperation between the EU and the US as vital in a changing world. Neither reaction will help smooth international relations between two of the world’s leading trading partners’ Members of the European Parliament (n 5). 113 ‘Donald Trump Is Fighting Trade Wars on Several Fronts’ [2018] The Economist <https://www.economist.com/graphic-detail/2018/07/20/donald-trump-is-fighting-trade-wars-on-severalfronts> accessed 21 July 2018. 114 The EU and the US are the world’s leading exporters of digital goods, with a surplus of USD 168 Billion and USD 151 Billion (respectively) and respond for the largest cross-border data flows, twice the US/Latin America flows and 50% more than US/Asia flows. Martin A Weiss and Kristin Archick, ‘U.S.-EU Data Privacy: From Safe Harbor to Privacy Shield’ 4. 115 Whitman (n 11) 1156. 116 Weiss and Archick (n 114) 3. 117 Information Technology Industry Council and BSA—The Software Alliance, ‘Tech Industry Leaders Commend Conclusion of Safe Harbor Transatlantic Data Transfer Negotiations’ (2 February 2016) <http://www.bsa.org/news-and-events/news/2016/february/en02022016safeharborconclusion/?sc_lang=en-US> accessed 21 July 2018. 118 For a similar point on antitrust, see Evans (n 65). 119 Weiss and Archick (n 114) 15. European Commission, ‘Exchanging and Protecting Personal Data in a Globalised World - COM(2017) 7’ (n 71) 2. American companies are spending millions of dollars to comply with the GDPR PricewaterhouseCoopers, ‘GDPR Compliance Top Data Protection Priority for 92% of US Organizations in 2017, According to PwC Survey’ (PwC, 23 January 2017) <http://www.pwc.com/us/en/press-releases/2017/pwc-gdpr-compliance-press-release.html> accessed 21 July 2018. 120 See Bradford (n 14) 7–9. 121 See the recent OECD study on the matter—OECD (n 85). 122 See also ibid 15. 123 On the importance and techniques of relevant market definition in monopolization claims, see ABA Section of Antitrust Law (n 47) 599–602. 124 ibid 226–28. This is important because US Courts are reluctant to accept direct showings of exclusion as evidence of dominance. See ibid 227–28, quoting McWane, Inc v FTC (2015) 783 F.3d 814 (11th CIrcuit). 125 Although case law should (hopefully) evolve from the KinderStart framework as more cases reach courts, the decision is not alone in requiring plaintiffs to narrowly define relevant markets through cross-elasticity tests as a pre-condition to any antitrust lawsuit. See, for example, the Ohio et al v American Express Co et al (n 41) 2, Brown Shoe Co v United States (1962) 370 SCt 294 (Supreme Court), at 325 and FTC v Lundbeck, Inc (2011) 650 F.3d 1236 (8th Circuit) 4–6, citing many other cases. 126 See Daron Acemoglu and James A Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty (1st edn, Crown Business 2013) 93–95. Jorge Padilla, ‘The Role of Economics in EU Competition Law: From Monti’s Reform to the State Aid Modernization Package’ [2016] Concurrences Review 10–11. 127 See Todd (n 54) 85–91. It is interesting to notice that the EU itself recognizes this in merger review, however adopting a formal analysis to dominance investigations. An example is the Microsoft cases, in which the EU generally approved potential tying obligations in Microsoft/Skype and Microsoft/LinkedIn, however condemned them in the Windows Media Player investigation. This is inconsistent. See Ibáñez Colomo (n 43)s 4.3.3. 128 For example, on the Windows Media Player bundling case, the European Court of First Instance affirmed a formal theory of foreclosure based on the ubiquitous presence of WMP on Microsoft PCs. Case T-201/04, Microsoft v Commission (n 56) para 1058. See also Ibáñez Colomo (n 43) 11–12. The CJEU’s Case - C-413/14 P Intel v Commission [2017] CJEU ECLI:EU:C:2017:632 is a step in the right direction, though the Court may need to go further to revert the strong-presumption of illegality for certain other practices. It is telling that the FTC has a team of more than 80 PhD economists, while the European Commission’s team does not have even 30. See https://www.ftc.gov/about-ftc/bureaus-offices/bureau-economics/biographies and http://ec.europa.eu/dgs/competition/economist/contacts.html accessed 21 July 2018. 129 For example, analyses focused on whether companies had an actual incentive to exclude a given competitor from the market, combined with common-law doctrines, such as that of narrowing what qualifies as an antitrust injury, of remoteness (eg pass-on defences) and a general concern in deterring welfare-enhancing conduct. See ABA section of Antitrust Law (n 47) 729, quoting RSA Media, Inc v AK Media Group, Inc (2001) 260 F.3d 10 (1st Circuit); Serpa Corp v McWane, Inc (1999) 199 F.3d 6 (1st Circuit); Greater Rockford Energy & Technology Corp v Shell Oil Co (1993) 998 F.2d 391 (7th Circuit). 130 Streetmap EU Ltd v Google Inc & Others (2016) 2016 253 (EWHC) para 177. 131 The Court affirmed this presumption based on Google market share of 75–85% and as a way to expedite the trial, holding that should it decide that Google’s conduct was abusive, there could be a separate assessment on dominance. ibid paras 41–43. However, Google’s high and stable market-share, combined with other qualitative factors such as brand recognition, economies of scale and scope, product portfolio, global presence, and others justify a strong presumption of dominance against the company under the proposed framework. 132 ibid paras 62–63. 133 ibid para 102. 134 ibid paras 130–33. 135 ibid para 79. 136 ibid paras 118–19. In particular, Streetmap did not: (i) recognize St as abbreviation of street (among other linguistic problems); (ii) have slippy maps (that move proportionally to zooming in or out); nor it (iii) recognize natural language searching (eg ‘where is the British Museum’). 137 ibid paras 155–58. 138 In the Streetmap case, EU Courts could, for example, affirm that if plaintiffs demonstrated Google’s clear intent to harm competition, its preferential product placement and the decline of Streetmap, this body of evidence would be enough to prove foreclosure. The US could maintain the more detailed examination of whether Google’s actions drove Streetmap out of the market and whether there were countervailing efficiencies with the practice. 139 For example, the recent Cambridge Analytica scandal in the US has renewed claims for a comprehensive privacy federal data protection regulation. Nonetheless, much of the push for new legislation is still focused on empowering user consent rather than imposing limitations as in Europe. Moreover, with Silicon Valley leading the US lobby industry it is likely that any new regulations may be watered down. See Steven Norton and Angus Loten, ‘Facebook Hearings Illuminate Future of Business and Data Privacy’ WSJ (San Francisco, 16 April 2018) 1; Olivia Solon and Sabrina Saddiqui, ‘Forget Wall Street – Silicon Valley Is the New Political Power in Washington’ The Guardian (San Francisco and Washington, 3 September 2017) 1. 140 Between 2005 and 2015, private antitrust litigation outnumbered public litigation in the US by thousands of cases. See United States, ‘Relationship between Public and Private Antitrust Enforcement - United States OECD Submission’ <https://www.ftc.gov/system/files/attachments/us-submissions-oecd-other-international-competition-fora/publicprivate_united_states.pdf> accessed 21 July 2018 and <http://www.uscourts.gov/sites/default/files/statistics_import_dir/C02Jun14.pdf> accessed 21 July 2018. 141 ABA Section of Antitrust Law (n 47) 729, quoting RSA Media, Inc v AK Media Group, Inc (n 129); Serpa Corp v McWane, Inc (n 129); Greater Rockford Energy & Technology Corp v Shell Oil Co (n 129). 142 Brunswick Corp v Pueblo Bowl-O-Mat, Inc (1977) 429 SCt 477 (Supreme Court). Atlantic Richfield Co v USA Petroleum Co (1990) 495 SCt 328 (Supreme Court), see also William H Page, ‘The Scope of Liability for Antitrust Violations’ [1985] Stanford Law Review 1445, 1460. 143 What EU Courts called ‘margin of assessment’ or ‘margin of discretion’. See Fernando Castillo de la Torre and Eric Gippini Fournier, Evidence, Proof and Judicial Review in EU Competition Law (Edward Elgar Publishing 2017) 76. Between 2004 and 2015 EU authorities started 2066 investigations, of which 907 ended in some form of enforcement (including agreements), a fraction of the US—European Commission, ‘ECN - Statistics’ <http://ec.europa.eu/competition/ecn/statistics.html> accessed 21 July 2018. 144 Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provision of the Member States and of the European Union 2014 (OJ L 349, 5122014, pp 1–19). For a summary of the changes see Sebastian Peyer, ‘Compensation and the Damages Directive’ (2016) 12 European Competition Journal 87 s B.II. 145 See, for example, Peyer (n 144) s D. 146 See European Commission, ‘Communication from the Commission on Quantifying Harm in Actions for Damages Based on Breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union’ <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2013:167:0019:0021:EN:PDF> accessed 21 July 2018; European Commission, ‘Practical Guide on Quantifying Harm in Actions for Damages Based on Breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union - SWD(2013) 205’ <http://ec.europa.eu/competition/antitrust/actionsdamages/quantification_guide_en.pdf> accessed 21 July 2018. The guidelines suggest, among others, comparison techniques such as (i) difference in differences (para 56) or prevented entry methods (para 200); (ii) linear interpolation or extrapolation (para. 67); (iii) regression analysis (para 92); and many variations of those techniques, such as: (iv) cost-based analysis and calculation of average profit margin per unit and of lost sales (para 191) or (v) finance-based analysis and evolution of profitability (para 115/197). See also RBB Economics and Cuatrecasas, Gonçalves Pereira, ‘Study on the Passing-on of Overcharges’ <http://ec.europa.eu/competition/publications/reports/KD0216916ENN.pdf> accessed 21 July 2018. 147 See generally, Justin Hurwitz, ‘Chevron and the Limits of Administrative Antitrust’ (2014) 76 University of Pittsburg Law Review 209. 148 This process may take less long than expected. Only in 2017 two British shopping comparison companies are privately suing Google for abuse of dominance, see James Titcomb, ‘Price Comparison Site Kelkoo Takes Google to High Court over Abuse of Search Dominance’ The Telegraph (London, 3 June 2017) 1; Martin Strydom, ‘Foundem Leads Queue to Fight Google’ The Times (London, 3 July 2017) 1. 149 A similar call for interoperability and adopting shared standards to ease exclusion concerns can be seen at OECD (n 85) 25. 150 See European Commission, ‘EC Google Android Fine’ (n 84) and European Commission, ‘Antitrust: Commission Takes Further Steps in Investigations Alleging Google’s Comparison Shopping and Advertising-Related Practices Breach EU Rules’ (14 July 2016) <http://europa.eu/rapid/press-release_IP-16-2532_en.htm> accessed 21 July 2018. 151 The merger was approved after Microsoft offered commitments that would: (i) ensure that pc manufacturers and distributors are free not to install LinkedIn on Windows; (ii) allow competing professional social networks to maintain current levels of interoperability with Windows; and (iii) grant competing professional social networks access to Microsoft gateway for developers. Again Commissioner Vestager emphasized how such commitments were important to ensure freedom of choice: ‘Today's decision ensures that Europeans will continue to enjoy a freedom of choice between professional social networks.’ European Commission, ‘Mergers: Commission Approves Acquisition of LinkedIn by Microsoft, Subject to Conditions’ (6 December 2016) <http://europa.eu/rapid/press-release_IP-16-4284_en.htm> accessed 21 July 2018. 152 See, Rob Pegoraro, ‘Web Companies Should Make It Easier to Make Your Data Portable: FTC’s McSweeny’ USA Today (Lisbon, 12 November 2017) <https://www.usatoday.com/story/tech/columnist/2017/11/12/web-companies-should-make-easier-make-your-data-portable-ftcs-mcsweeny/856814001/> accessed 21 July 2018 and Christopher Mims, ‘Facebook Data Harvest Yields Confusing Maze’ Wall Street Journal (New York, USA, 14 April 2018) 1. 153 Art 29 Data Protection Working Party, ‘Guidelines on the Right to Data Portability’ <http://ec.europa.eu/information_society/newsroom/image/document/2016-51/wp242_en_40852.pdf> accessed 21 July 2018, p 3. 154 As the EC itself suggested, see ibid 14. 155 There is evidence suggesting that protectionism is not taking place in EU merger review, even in relation to high-technology sectors. See Bradford, Jackson and Zytnick (n 3) 187. However, the protection of EU companies’ competitiveness has always been at the forefront of European market regulation. Bradford (n 14) 40–42. 156 Roslyn Layton, ‘Europe’s Protectionist Privacy Advocates’ Wall Street Journal (9 March 2016) <http://www.wsj.com/articles/europes-protectionist-privacy-advocates-1457566423> accessed 21 July 2018. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

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Journal of Antitrust EnforcementOxford University Press

Published: Mar 1, 2019

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