Interplay of Data in Digital Economy and Merger Control Regime: A Conundrum without Solutions
| Autor | Kritika Singh, Sarthak Mishra |
| Cargo | Assistant Professor at the Faculty of Law, National Law University, Jodhpur (India)/Assistant Professor at the Faculty of Law, National Law University, Jodhpur (India) |
| Páginas | 17-37 |
Interplay of Data in Digital Economy and Merger Control Regime... (p. 17-37) 17
SINGH, K; MISHRA, S.
Interplay of Data in Digit al Econo my and Merger Control Regime: A Conundrum
without So lutions
.
The La w, State a nd Telecommunic ations Review
, v. 14, no. 2, p. 17-37, October
2022.
Interplay of Data in Digital Economy and Merger Control
Regime: A Conundrum without Solutions
Submitted
: 10 Decemb er 2021
Kritika Singh*
https://orcid.org/0000-0001-9214-210X
Sarthak Mishra**
https://orcid.org/0000-0002-9727-0597
DOI: https://doi.org/10.26512/lstr.v14i2.41171
Revised
: 12 January 2022
Accepted
: 15 Marc h 2022
Article submitted to peer blind re view
Licensed under a Creative Common s Attribution 4.0 International
Abstract
[Purpose]
The paper is an attempt by the author s to evaluate the feasib ility of
applicability of exist ing competition law fra mework to the growin g platform economies
and the resulta nt implications of persona l data being collected by such entities.
[Methodology/ap proach/design]
The present r esearch is doctrinal in nature and the
authors have ad opted a comparative-a nalytical rese arch methodo logy for evaluating the
research questions. For the purpose of brevity, the authors have identifie d three rese arch
questions which shall form t he basis of the research. Firstly, what is the inter-relatio n
between the growing platform economy and merger control regime of a country.
Secondly, what the po ssible avenues of concerns that may arise due to colle ction of
personal data . Lastly, what are the possible enforc ement challenges that would hampering
the applicabili ty of existing competition r egimes to the digital platf orms.
The aut hors have con sidered the jur isdictions of EU and India as the geographical scope
for the research, wherea s, the subject-m atter scope of the present r esearch is limited only
to the f acets of interaction between the merg er control regime and the abusive conduct of
a dominant en terprise in the arena of dig ital markets.
[Findings]
The au thors have made the following obser vations upon the conclusion of the
study. First of all, the use and access of this da ta af ter the merger with companies with
low turnover confer the acquiring en terprise a market powe r by which it can have an edge
over its competitors in the market which will ultimately harm the competi tion in the
market. Second, the d igital market is data -driven, hence, collec tion of copious amou nts of
*
Assistant Prof essor at the Faculty of Law, National Law Un iversity, Jodhpur (India). Ms.
Singh specializes in Corporate Laws. Her primary research areas include Competition
Law with specific focus on Merger Control and Competition Ab uses by Dominant
Enterprises, Corporate Governance, International Maritime Law. E-mail:
kritika11oct@gmail.com . Ad dress: F/10, National Law Un iversity, Jodhpur , NH-65,
Mandore, Jodh pur, Rajasthan, India – 342304.
**
Assistant Professor at t he Faculty of Law, N ational Law University, Jodhpur (India).
Mr. Mi shra specializes in Co rporate Laws. His pri mary research areas incl ude
Competition Law, Company Law, Inter national Econ omic Laws with specific focus on
International Investm ent Law and Internationa l Commerc ial Arbitration . E-mail:
sarthak.mishra @nlujodhpur.ac.in.
18
Interplay of Data in Digital Economy and Merger Control Regime... (p. 17-37)
SINGH, K; MISHRA, S.
Interplay of Data in Digit al Econo my and Merger Control Regime: A Conundrum
without So lutions
.
The La w, State a nd Telecommunic ations Review
, v. 14, no. 2, p. 17-37, October
2022.
data, places the big-tech player s in a position of c ontrol, allowing them indulge in
exclusionary and exploitative con duct. Third, the assessment basis of combinations, more
specifically in cases of data-driven mergers within the com petition law needs a ser ious re-
assessment, so as to include monetar y value of data within the scope of assessment, a s it
is primary as set in such ca ses.
[Practical implications]
The importance of this rese arch lies in the acknowledgement
accorded the issue and the existing loopholes with the current merger control f ramework
concerning data-driven mergers. Hence, the asses sment criteria provide d within the pap er
for the data -driven mergers woul d effectively serve as a foundational study for the further
evolution and developme nt of a specific and concrete frame work for r egulating data-
driven merger s.
Keywords
: Digital Pl atforms. Data Concentr ation. Abuse of Dom inance. Monetisation of
Data. Third Pa rty Tracking.
INTRODUCTION
The advent of Globalisation in the early 1990s led to increased interaction
and integration of human resource and capital resource, leading to unwarranted
implications of both positive an d negative nature. This transition from an
isolated world to an interconnected world at present has been greatly facilitated
by the technological adv ances. However, the turn of the millenniu m witnessed a
new global phenomenon i.e., dig itization of the economy, which was
characterised by a meteoric rise of the e-commerce and platform-based services
(Stucke & Ezrachi, 2018).
The online platforms differ significan tly in their operability in comparison to
the traditional business models, and thus have carved out a separate niche arena
for th emselves. Owing to their primal differences, the considerations and
attempts behind increasing their marketability also vary significantly, when
these two business models are compared.
Unlike traditional brick -and-mortar businesses, which rely on considerations
such as brand value, monetary strength, market reputation etc. to build their
business, the platform business entities are completely reliant on their database
created through collecting personal information of their consumers and
thereafter monetising the same to generate revenue. Such data owing to their
nature and relevance in terms of giving insight to an individual’s psyche have
been termed as ‘Big Data’ (Batistic & Laken, 2019).
In 2016, OECD (Organisation for Economic Co-operation and Develo pment)
made its first attempt of understanding “Big Data”, (OECD Summary
Discussion, 2017) and subsequently formulated the following attributes in its
attempt to provide an inclusive definition of ‘Big Data’.
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