Orrick Antitrust & Competition partner Alex Okuliar has co-authored an article in the European Competition Journal with Greg Sivinski, Assistant General Counsel in the Competition Law Group at Microsoft, and Lars Kjolbye, a partner at Latham & Watkins in Brussels, in which they propose a framework to determine the competitive significance of data. The framework first considers whether the parties own or control the relevant data. The second consideration is whether the relevant data is commercially available as a product or as an input for products of downstream competitors. The third consideration is whether the relevant data is proprietary to the owner’s or controller’s products or services and a competitively critical input. The last consideration is whether reasonably available substitutes for the relevant data exist or whether the data is unique.
The article can be accessed here.
As more internet users entrust their personal data to operators of websites, operators’ use of this “Big Data” has become a growing concern. As a result, government agencies around the world are grappling with whether and how to regulate “Big Data” in the context of social networking websites. This includes some competition authorities that are trying to expand their purview by using competition laws to regulate “Big Data” in the context of social media. The possibility that competition authorities around the world may try to become super regulators of “Big Data” should be of concern to all operators of social networking websites.
A case in point is the German competition authority (FCO), which in March 2016 initiated proceedings against one of the most popular social networking sites – Facebook – purportedly based on a concern that it may have infringed data protection rules. Since the case is the first of its kind in Europe, the outcome – which is expected before the end of the year – is awaited with great interest.