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Posts by: Philippe Rincazaux

Competition and Innovation: Application of European Competition Law to a Rival’s Demand for Access to a Competitor’s Data

The Internet has given rise to information-based businesses that create value by accumulating pools of data captured from many sources. Indeed, the collection and analysis of vast amounts of consumer data has become the engine driving significant innovation on the Internet. From search to social networks to shopping to gaming, the use of consumer-generated data is increasingly the way to monetize web services. Internet companies amass vast amounts of new data by the second. These data are then used by them, and others, to generate advertising revenue and to develop new products.

For many companies, products derived from raw data will drive innovation. For example, access to personal data will help firms better understand consumers and how to meet their needs. Retailers maintain extensive data on their customers (tied either to a customer loyalty card, name, or physical or email address). Using demographic information and purchasing history, companies can determine—through the power of data analytics—shopping habits and can then develop targeted advertising. For example, companies can now use predictive analytics to identify potentially pregnant women. They then can use targeted advertising to suggest a new product purchase—baby products—when that customer orders cleaning supplies or groceries.1

As Internet firms grow ever larger and their stores of data grow exponentially, questions regarding the control of, and access to, these data have emerged. Firms seeking to gain or ensure continued access to these data have asserted antitrust theories as a basis for doing so, although no European court has yet to accept any such claim. In reality, such claims have been raised principally as a counterattack when firms with some degree of market power have sued third parties for violating terms of service and copyright by accessing data in an unauthorized manner. These types of counterclaims raise numerous questions—the most obvious of which is, who owns the data anyway?