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Italian regulators cooperation produces guidelines and policy recommendations on big data

Big data and institutional cooperation: antitrust, consumer protection and privacy enforcement

25 September 2019

On 10 July 2019, the Italian Competition Authority (ICA), the Italian Data Protection Authority (DPA) and the Italian Authority for Communications (IAC), adopted the 'Guidelines and Policy Recommendations on Big Data'.

The three Authorities' analysis started from the premise that Big Data is increasingly important in the current economic and social context and its development has huge and undeniable advantages for both market players and consumers. However, in the view of the Authorities, when undertakings with such large quantities of data also enjoy significant market power, concerns may arise in the areas of fundamental rights, competition and pluralism.

The Authorities implemented 11 policy points and recommendations analysing (i) data acquisition, (ii) data utilisation, and (iii) the Authorities' power and mutual cooperation.

Data Acquisition

The Guidelines state that a fundamental goal of Big Data policies should be the reduction of the information asymmetry between users and digital operators both from a data protection and competition standpoint. The fact-finding inquiry has clearly demonstrated that there is an inverse relationship between the purchase price of an app and the consent required from the users (i.e. the lower the price the higher the consent required). In particular, at the time data are collected, users must be informed about the possibility of being recognised as individuals, including from anonymised data, and about the right to data portability among platforms (pursuant to Article 20 of the General Data Protection Regulation).

With regard to competition, undertakings holding large quantities of data may be obliged to give their competitors access to indispensable and non-replicable data. The Guidelines suggest reducing the information asymmetry between large digital platforms and other operators that make use of them, for instance by designing more transparent rankings for the positioning and the visibility on the platforms.

Data Utilisation

From the consumer's perspective, the Authorities underscored that operators managing Big Data should ascertain if data are of a personal nature and, if so, they should use them according to stricter standards. The ultimate aim should be to safeguard consumers' welfare and their ability to have access to information, in particular online information, that is fair, complete, verifiable and non-discriminatory.

From the undertakings' perspective, the Authorities highlighted that the use made of Big Data by undertakings, and online operators, in particular, has crucial consequences on competition dynamics in online markets. Currently, antitrust and consumer protection provisions are limited in their ability to tackle issues connected to Big Data. However, they are still the first methods used to manage possible concerns. For instance, the Guidelines consider that algorithms may become a vehicle to implement collusion among undertakings, and that merger rules should assume a new pivotal role in catching transactions that may appear prime facie irrelevant (as the turnover thresholds are not met), but are in fact "killer acquisitions" by large tech companies of innovative start-up companies.

Powers of the authorities and cooperation

Finally, the Guidelines provide a number of proposals in relation to international cooperation between authorities, as well as specific considerations for national cooperation. At the European level, cooperation among competition authorities should be undertaken in the context of the European Competition Network. At a global level, the Organisation for Economic Co-operation and Development, the International Competition Network and the UN Conference on Trade and Development should be used. The Guidelines also highlight, from a consumer protection standpoint, the importance of strengthening the information exchange between the different Authorities within Italy, with a view to both protecting consumers' privacy and promoting competition. The Authorities should also implement effective advocacy activities aimed at preventing and resolving concerns relating to privacy, competition, consumer protection and pluralism.

Conclusions

The Guidelines confirm the attention that Italian national authorities are paying to Big Data from different perspectives. In this context, it will be important to analyse the final report of the fact-finding inquiry carried out by the Authorities and to monitor the enforcement trends not only in Italy, where effective implementation is expected, but also in other jurisdictions.

KEY TAKE-AWAY POINTS
  • The Guidelines identify a fundamental goal of Big Data policy: the reduction of the information asymmetry between users and digital operators and between large platforms and other operators using the platform.
  • The Authorities suggest that merger rules can assume a pivotal role in catching so-called "killer acquisitions" (acquisitions by large tech companies of tech start-ups, which stifle growth and innovation) and thus represent a first method for tackling possible concerns, along with consumer protection provisions.
  • The Guidelines provide a number of proposals for national and international cooperation to ensure the effective safeguarding of privacy, competition, consumer protection and pluralism regarding Big Data.