Data Privacy and Competition Law in the Age of Big Data

Data Privacy and Competition Law in the Age of Big Data

In the last few years, we have seen the emergence of companies whose core business models are built around the monetisation of users’ personal data. At the forefront of this venture are companies like Google and Facebook, which collect and analyse massive amount of data about consumers—where they are, what devices they use, what they purchase and different categories of their online behaviours and interests—often without consumers’ full awareness. Among other things, the collection of such vast amounts of data enables these companies to create detailed profiles of consumers and deliver online advertising with remarkable precision. This ad-based business model has allowed these companies to achieve extremely high turnovers and ascend to the top of the hierarchy of the most valuable companies.

This increased monetisation of personal data has ignited global debate on the interface between data privacy law and competition law. In his recently published monograph, Data Privacy and Competition Law in the Age of Big Data (Oxford University Press 2024), Samson Esayas provides a comprehensive, novel, and interdisciplinary analysis of this nexus. Drawing insights from emergent properties and complexity science, the book exposes the commonalities and conflicts between how data privacy law and competition law address challenges resulting from the commercialization of personal data.

The book begins by identifying key shifts in big data: the growing trend of processing personal data for diverse purposes, the aggregation of data across various operations, and the shift from offering stand-alone products and services to ecosystems of several, with personal data central in connecting the different markets. These shifts engender a complex economic landscape, marked by multiple actors, a web of interactions, and non-linear, emergent outcomes. Despite this complexity, the prevailing approach to data privacy law and competition law emphasises isolated units of analysis-whether a relevant market or a distinct processing operation. This approach overlooks system-wide (emergent) risks borne of cumulative processing operations and cross-market practices. Additionally, a mindset focused on either data privacy law or competition law overlooks the increasing intersection between the two regimes, missing opportunities for synergy.

In light of these challenges, Esayas’s volume calls for recalibrating data privacy law and competition law for a complex economy, emphasizing a holistic, systems-level perspective that addresses emergent harms and a polycentric strategy that leverages the strengths of each legal regime.

Dr Samson Esayas is an Associate Professor at BI Norwegian Business School and a Faculty Associate at Harvard University’s Berkman Klein Center for Internet and Society. He specializes in teaching data protection law, AI regulation, and competition law. His research explores the power dynamics stemming from control over data and mediated communications, with a focus on how these evolving power paradigms are addressed by competition and data privacy law. He earned his PhD from the University of Oslo in 2020 and his dissertation was awarded His Majesty the King’s Gold Medal for outstanding research in 2021. He was a visiting researcher at the Berkman Klein Center in 2023

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