Your Data Is My Data

Author:Mr John Cassels
Profession:Field Fisher Waterhouse

The accumulation and monetisation of personal data by companies like Google is attracting attention from the EU's antitrust authorities. As Internet and data rich businesses grow and their data holdings expand, access to and portability of personal data becomes not only a data privacy issue, but also an antitrust issue. This was Joaquin Almunia, the EU's Competition Commissioner, speaking late in 2012:

"today, personal data are a type of asset for companies .... they use their access to personal data to gain commercial advantage ... it is necessary to strike the right balance between regulation and competition policy enforcement."

But what do the EU's antitrust rules mean for data gatherers? In particular, when might the antitrust rules require that a competitor must be given access to your data?

In answering this, the best analogy is provided by the "essential facilities" cases such as Magill and IMS Healthcare. Both cases involved investigations of refusals to provide access to copyright data.

Magill wanted to produce a comprehensive (all channel) television listing guide. Broadcasters including BBC and ITV refused to license Magill to reproduce their weekly listings. The European Commission found that the refusal was a breach of the competition rules and ordered the broadcasters to supply third parties (including Magill) on request and on a non-discriminatory basis with their individual advance weekly programme listings and to permit...

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