The limits of antitrust in privacy protection

Abstract

Many solutions have been put forward to defend consumers’ privacy. The proponents of antitrust as a privacy remedy provide a variety of rationales, often interrelated, which this paper will briefly explore.1 One is that dominant platforms can impose abusive terms over their users who then have no way of leaving the service because network effects leave them effectively locked in. Another rationale is that antitrust promotes consumer welfare by ensuring consumer choice and that antitrust enforcement should guarantee that there is non-price competition including in different levels of privacy protection.2 A third one suggests that companies should be held accountable under antitrust law when they mislead or deceive consumers about the personal data collection practises that helped them achieve monopoly power.3 And finally, there are those who believe that the possession of personal data should be viewed as a potential barrier to future competition and considered during merger review, even when a merger wouldn’t otherwise have significant vertical or horizontal competitive effects.4 The above arguments show that antitrust has an important, but narrow role in privacy protection.