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The accumulation and monetisation of personal data by companies like Google is attracting attention from the EU's antitrust authorities. As Internet and data rich businesses grow and their data holdings expand, access to and portability of personal data becomes not only a data privacy issue, but also an antitrust issue. This was Joaquin Almunia, the EU's Competition Commissioner, speaking late in 2012:
"today, personal data are a type of asset for companies …. they use their access to personal data to gain commercial advantage … it is necessary to strike the right balance between regulation and competition policy enforcement."
But what do the EU's antitrust rules mean for data gatherers? In particular, when might the antitrust rules require that a competitor must be given access to your data?
In answering this, the best analogy is provided by the "essential facilities" cases such as Magill and IMS Healthcare. Both cases involved investigations of refusals to provide access to copyright data.
Magill wanted to produce a comprehensive (all channel) television listing guide. Broadcasters including BBC and ITV refused to license Magill to reproduce their weekly listings. The European Commission found that the refusal was a breach of the competition rules and ordered the broadcasters to supply third parties (including Magill) on request and on a non-discriminatory basis with their individual advance weekly programme listings and to permit reproduction of them.
In IMS Healthcare, the European Court found that refusal by a dominant company to grant a licence to intellectual property in a programme that was indispensable to the presentation of regional sales data on pharmaceutical products to a company that also wished to provide such data could, in certain circumstances, be an abuse of dominance. Therefore, it could be an infringement of the EU antitrust rules.
The circumstances in which refusal to license/deal or otherwise provide access to property (intellectual or otherwise) may infringe the EU antitrust rules are broadly as follows:
- The rights holder must be dominant in the EU or part of the EU. Generally this means a market share of around 40% or more.
- Refusal is preventing the emergence or launch of a new product for which there is potential customer demand.
- There is no objective justification for the refusal (for the purpose of the EU rules, keeping a potential competitor out of the market is not an objective justification).
If you would like more information about data management and antitrust risks, please contact John Cassels.