US FTC official warns against conflating antitrust and privacy

Vincent Manancourt

04 May 2018

Counsel for international antitrust at the US Federal Trade Commission has said enforcers “should not conflate” data privacy with competition issues, but dismissed suggestions the FTC does not take privacy concerns related to mergers seriously.

Speaking at the 7th Annual GCR Live Telecoms Media & Technology conference in London, Maria Coppola said “it is not true” that the FTC ignores non-price factors like data privacy in merger control.

Coppola said the FTC had looked at user privacy issues in Google/DoubleClick, eventually deciding not to block the merger on privacy grounds. In a statement regarding its 2007 decision, the FTC said privacy concerns were not unique to the US$3.1 billion acquisition, and extended to the whole advertising industry.

The FTC has to be careful not to mix its roles as a data protection and competition watchdog, she said. “There’s probably a reason they are in different buckets,” she said. 

Laurent Garzaniti at Freshfields Bruckhaus Deringer in Brussels said companies could face “double jeopardy” if competition watchdogs stray too far into data privacy issues, and called for “a line to be drawn” between the remits of different kinds of regulators to ensure legal certainty.

Brice Allibert, deputy head of antitrust at the European Commission’s Directorate-General for Competition, said EU authorities differentiate between competition and data protection regulation enforcement – stressing that the abuse of dominance allegations against Facebook by Germany’s Federal Cartel office on data privacy grounds were purely based on German and not EU law.

The German enforcer has accused Facebook of abusing a dominant position on Germany’s social networks market by gathering data on people without their proper consent.

Speaking from the audience, Helen Jenkins, managing partner of Oxera, cast doubt on the assertion that privacy is a competition issue, saying consumers are happy to trade their data for free services and do not choose services based on privacy policies.

Allibert said the success of Xing, a German platform that advertises itself as a privacy-concerned version of LinkedIn, suggested privacy could be a consideration for consumers.

David Foster at Frontier Economics said the EU's incoming General Data Protection Regulation could kill the question of whether privacy is a concern for competition authorities once and for all. He argued that the incoming regulation was so strict that companies will probably adopt similarly rigid privacy policies.

The conference ended on 4 May.

This story was written for Global Data Review, a new service by Global Competition Review’s publisher, Law Business Research. Find out more about GDR here.

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