FINE-TUNING THE EX ANTE APPROACH TO REGULATING DATA COMBINATION PRACTICES

Xingyu Yan and Huaiwen He

Journal of Competition Law and Economics, 2022, vol. 18, issue 4, 898-921

Abstract: Antitrust in digital markets is gravitating towards ex ante regulation. This is prompted by growing concerns for user data exploitation and rival foreclosure on the part of big tech platforms. One particular area embodying such concerns pertains to data combination practices—more specifically, within-conglomerate data sharing, where data collection is scaled up in digital ecosystems and monetized through avenues such as attention brokerage. A recent effort to address such concerns is Article 5(a) of the Digital Markets Act proposal, which imposes a proscriptive obligation on gatekeeper platforms. This article rationalizes this ex ante approach to tackling exploitative data combination and highlights the need for further ex ante competition-enhancing measures that deal with the markets dominated by gatekeepers. Two directions are worth exploring: ecosystems compatibility and data as labour. Both underscore the importance of end users’ right to data portability.

Date: 2022
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