CCP Annual Conference 2015 Live Blogging Session 2: E-Discovery The Challenge to Enforcement
June 18, 2015 2 Comments
Andy Gavil (Howard University, Washington DC, USA @howardlawschool) discusses the challenges made to competition enforcement by advances in technology, especially computers and information storage systems. Andy examines the institutional challenges for competition law enforcers and courts in trying to cope with the joining of more demanding standards of proof and the increasing amount of electronically stored information (ESI). This information, whilst being informative, is available in large quantities. Andy argues that whilst the move towards a new “effects-based” analysis creates more accurate decisions, there is less clarity and greater costs. Information is not costless. Andy points out that the mass increase in information does not mean that the process is extending, indeed the increasing technological advances do lead to some cost and process reductions.
Andy points out that there are three problems: technical (understanding technology), procedural (how does ESI fit within the system), Analytical (assessing its use, reliability and accessibility). Andy gives the example of Technology Assisted Review to show how technology has advanced to such a stage where technology attempt to provide what a paper search would achieve.
Whilst procedures and strategic considerations that have guided competition investigations in the pre-digital age can be adapted to accommodate this increase in information storage, new procedures and considerations are still needed. Given the effects-based analysis and ESI, the evidentiary requirement of economically-informed decision-making will need to be balance against the costs and technical challenges of information-driven decision-making. A probing cost-benefit analysis of the information itself will be needed. Andy states that there are numerous challenges in terms of technology understanding, capacity, increased cost and guidance. Potential countervailing benefits include reduced cost (compared to hand review), greater efficiency and increased accuracy.
In striking the balance, several possibilities exist. First, do we reach a point of diminishing returns? Second, do we create more error due to information overload? Or is the answer somewhere in between. Whether the balance exceeds the cost depends on who you are: consumer, party to the investigation or agency?
Orla Lynskey @lynskeyo (London School of Economics and Political Science) questions where competition law can protect privacy, and whether competition law can enhance and compliment data protection. There are many practical problems with this use of competition law which mean that the fundamental rights of individuals are best protected by the laws designed specifically for that purpose.
The European Commission’s competition law challenge of Google in the market for internet search seems to lack characteristics which most competition cases possess, such as clear foreclosure of rivals. The key concerns of the EC seem to be the preservation of plurality in information sources and the freedom of individuals to receive information – concerns which fit more easily into a framework of individual rights rather than competition law.
Increasingly, consumer data and its privacy has drawn the attention of competition authorities. The US FTC, the EU’s DG Comp and the UK’s CMA have all recently published research on competition *and* privacy/data protection issues raised by the use of consumer data. How possession of data by businesses may lead to dominant market power is a common theme in these reports. The complication here is that dominance is not, in itself, an infringement of competition law. If use of consumer data is instead regarded as an abuse of a dominant position then the complication becomes the fact that the behaviour must be legal if carried out by a non-dominant firm. Harm to consumers must be shown in any case, since competition law is not intended to protect competitors from harm. This may suggest that competition law is not amenable to being used for the protection of data privacy.
A counter-argument is that it is a legal necessity that competition authorities protect the fundamental rights of citizens, which include privacy and data protection. This is especially true of competition authorities which also have consumer protection responsibilities. It is debateable whether consumer choice is an objective for competition law enforcement, or whether this provides undue protection to competitors.
Many arguments in favour of the application of competition law to privacy are of questionable legitimacy. Competition law is very powerful compared to other types of laws, they may easily be targeted at companies and there are well-funded institutions dedicated to its application. It may also provide another “bite of the cherry” if a case made purely on privacy and data protection grounds fail. It may be that the issue is one of regulation rather than competition, however the regulation is very much already there.