The intersection between Antitrust and Data Protection. Lessons from the Facebook/Whatsapp merger and the Bundeskartellamt’s decision on Facebook’s terms and conditions

Most of the digital products are paid by users and consumers online with the provision of their personal data, so a complex parameter of competition is getting more and more attention in the assessment of online platforms antitrust cases: privacy. This transaction has always been considered principally under data protection authorities’ jurisdiction but has slowly become crucial in many antitrust cases on both sides of the Atlantic Ocean. In this work we investigate this intersection between competition law and privacy law. We try, on one side, to identify some tools potentially available to implement privacy concerns in antitrust, and on the other side to highlight which are the consequences on the two agencies enforcement. In Section I, the technological and juridical nature of personal data is presented. We then explain the factors and market dynamics which make them a relevant competitive and strategic asset. In section II, we analyse the concepts of “Privacy Paradox” and “Privacy Calculus” which together justify the common view on online consumers’ behaviour: if the market is not promoting online privacy-enhancing technologies, it is because consumers don’t really signal this need with consistent preferences. Finally, in Section III, we will analyse two cases: the Facebook/WhatsApp merger cleared by the European Commission in 2014 and the Bundeskartellamt’s decision on Facebook abusive terms and conditions, published on the 11th July 2019. In both cases privacy is a crucial parameter of competition. In the first case, we will see how the Facebook/WhatsApp investigation could have been enhanced by a conception of privacy as “non-monetary price” and a coherent privacy-related theory of harm. The latter case, is instead interesting for the unprecedent approach adopted by the German Authority, paving the way for a new consideration of privacy and personal data. The case is hotly debated and may start a closer and innovative collaboration between competition agencies and data protection ones.