Antitrust and Unfair Competition Law

Competition: Fall 2020, Vol 30, No. 2

BIG DATA AND ANTITRUST RISKS IN CLOSE-UP: FROM THE PERSPECTIVE OF REAL CASES

By Ken Dai and Jet Deng1

Big data is the new battleground to achieve the competitive edge. The digital market features both the first-mover advantage and a winner-takes-all environment. Without doubt, enterprises fight for data, and suppress rivals from access to data. China, as one of the world’s largest Internet markets with the largest Internet user population, exemplifies the heated data game. The Alibaba and SF Express data sharing spat is a famous example. In 2017, Alibaba’s logistic network, Cainiao, cut off its data interface for SF Express, one China’s largest couriers, and removed SF Express as a courier option on its e-commerce platform Taobao.2 The dispute was traced back to SF Express’s refusal to share customer logistics tracking data in the name of customer privacy protection.3 Similarly, Cainiao’s action was allegedly due to data security concerns. The matter was settled upon intervention by the State Post Bureau, China’s courier service industry regulator. Similar disputes also occurred between Chinese tech giants Tencent and ByteDance, and between Tencent and Huawei, both of which will be discussed in this article. The yearning for data is overt among the leading companies, not to mention those smaller ones who remain far away from the tipping point.

The question is whether antitrust law has a role to play in regulating the competitive process for big data. By now the crossover seems to be inevitable and unstoppable. Across the world tech giants are often targets of competition law investigations. On the other hand, data protection laws have been increasingly applied in competition cases, such as the Facebook case in Germany which will be addressed in detail below. However, still there is a lot of space between "under-regulation" and "over-regulation."

The United States and China are examples of "under-regulation." Since United States v. Microsoft Corporation,4 and until recently, the U.S. regulators have not accused any tech giants of antitrust violations. Similarly, China’s digital economy does not fall much behind that of the U.S. and was also criticized for the lack of antitrust enforcement in the digital markets for the past twelve years since the enactment of its Anti-Monopoly Law.5 In stark contrast, the European Union ("EU") is more aggressive in scrutinizing tech giants. The penalty against Google for abusing the dominance of its Android mobile operating system was a record-breaking EUR 4.3 billion6 and was just one of the three fines that Google was hit with in the EU. The EU’s antitrust probe against Amazon is still ongoing for Amazon’s dual role as a retailer and a marketplace and how it took advantage of seller data.7 More recently, the Commission also opened formal antitrust investigations to assess whether Apple’s rules for app developers on the distribution of apps via the App Store violate EU competition rules.8 The EU Member States are also active in some prominent cases. While it may not be proper to characterize the EU enforcement as "over-regulation", it is apparently on the other side of the spectrum from the U.S. or China. But is there a definitive point at which antitrust authorities should act righteously? There are no easy answers. Related topics have been repeatedly discussed, such as how network effects lead to dominance and how multi-homing complicates the analysis—all intricate issues but gradually falling back to clichés.

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