Antitrust in Data Driven Markets & Legal Framework for Influencers, Native Advertising and Control over the Use of AI in Marketing

Description

This book gathers contributions from a broad range of jurisdictions, written by practitioners and academics alike, and offers an unparalleled comparative view of key issues in competition law, intellectual property and unfair competition law, with a specific focus on the use of personal data.  The first part focuses on the role of competition law in shaping the digital economy. It discusses the use of personal data, the market power of platforms, the assessment of free services, and more broadly the responsibility of dominant companies in the smooth functioning of the digital economy. In turn, the second part sheds light on how the conduct of influencers, native advertising and the use of AI for marketing purposes can be controlled by the law, focusing on the use of personal data and the impact of behavioral advertising on consumers.  In this regard, the book brings together the current legal responses across a number of European and other countries, all summarized and elaborated on in the form of two international reports. The LIDC is a long-standing international association that focuses on the interface between competition law and intellectual property law, including unfair competition issues. Preface Contents Contributors Abbreviations Part I: Antitrust in Data Driven Markets 1: International Report 1.1 Introduction 1.2 Background 1.3 Defining the Term ``Platform´´ 1.3.1 Legal Framework 1.3.2 Characteristics 1.3.3 Different Types of Digital Platforms 1.3.4 Market Definition 1.4 Market for Free Services 1.4.1 General 1.4.2 Fundamental Acceptance of the Concept of Markets for Free Services 1.4.3 Methodological Issues 1.5 Market Power and Abuse of Dominant Position 1.5.1 General 1.5.2 Relevant Criteria 1.5.3 Relative Market Power or Economic Dependency 1.5.4 Other Legal Instruments 1.6 Undertakings with Excessive Market Power 1.6.1 General 1.6.2 European Level: Digital Markets Act 1.6.3 German Law 1.6.4 French Law 1.6.5 UK Law 1.6.6 Other Jurisdictions 1.7 Comparison Portals 1.8 Most Favoured Nation Clauses 1.8.1 General 1.8.2 MFN-Related Specific Regulation 1.9 Interaction Between Competition Law and Data Protection Regulation 1.9.1 General 1.9.2 Starting Point: Complementary Relationship 1.9.3 Current Approaches 1.9.4 Need for Further Coordination 1.10 General Terms and Conditions, Consumer Protection 1.11 Telecommunication Sector 1.11.1 General 1.11.2 Consumer Protection 1.11.3 Mergers and Abuse of Dominant Position 1.12 Summary 2: Australia 2.1 Introduction 2.2 Platform 2.3 Relevant Market and Free Services 2.4 Market Power and Data 2.5 Misuse of Market Power 2.5.1 Sector-Specific Regulation: Telecommunications Industry 2.6 Acquisition of Market Power 2.7 Consumer Protection 2.7.1 Data Collection 2.7.2 ACL Provisions 2.7.2.1 Unfair Contract Terms 2.7.2.2 Unfair Trading Practices 2.7.3 Comparator Websites 2.7.4 Price Parity Clauses 2.8 Data Protection 2.8.1 Background to the Australian Information Privacy Law Framework 2.8.2 The Platform Context 2.8.3 The CDR 2.9 Online Advertising 2.10 Conclusion 3: Austria 3.1 Introductory Remarks 3.2 The Role of Antitrust Authorities Regarding the Digital Economy 3.2.1 Digitalization, a New Field of Law in Austrian Competition Law 3.2.2 Austrian Competition Law and Its General Approach to the Digital Economy 3.2.3 Austrian Competition Law and Data Protection, Compared to the German Law and Practice 3.2.4 Assessment of Market Power and the Relevance of Network Effects in Digital Markets 3.2.5 Amazon and the General Definition and Concept of a `Platform´ 3.2.6 Can There Be an Antitrust `Market´ for Free Services? 3.2.7 Online Advertising 3.2.8 Best-Price Clauses and Most-Favoured-Nation Clauses 3.2.9 Network Cooperation in the Telecommunication Sector 3.2.10 Abuse Without Dominance? 3.2.11 Consumer Protection 4: Belgium 4.1 Introduction 4.2 Institutional Aspects: From Advocacy to Case Law in Digital Markets 4.3 Substantive Assessments in Digital Markets 4.3.1 Market Definition and Power in Digital Markets 4.3.2 Restrictive Agreements and Abuse of Dominance in Digital Markets 4.3.2.1 Self-Preferencing by Gatekeepers 4.3.2.2 Access to and Use of Data 4.3.2.3 Most Favoured Nation Clauses 4.3.2.4 Abuse of Dominance Without Dominance-and Even Without Abuse 4.4 Conclusion 5: France 5.1 Tools and Types of Regulatory Intervention to Address Market Power in Digital Markets 5.1.1 The General Competence of the Competition Authority 5.1.2 Sectoral Regulators and Public Authorities Can Also Intervene in the Field of Digital Platforms 5.2 Competence of Antitrust Authorities in the Field of Personal Data Protection in the Case of Social Networks and Other Digi... 5.3 Determining ``Market Power´´ in Digital Markets 5.3.1 The Historical Absence of Guidelines to Assess the Market Power of Platforms 5.3.2 Market Power as a Criterion to Define a ``Structuring Digital Platform´´ 5.3.2.1 Contribution of the FCA 5.3.2.2 ARCEP Contribution 5.4 The Competition Law Definition of a ``Market´´ for Free Services 5.5 Sector Enquiries on Online Advertising by Antitrust Authorities 5.6 Regulators´ Treatment of Data Collection: The FCA´s Approach to the Use of General Terms and Conditions and Data Collection 5.6.1 The Absence of a ``Facebook Case´´ in France 5.6.2 The FCA´s Decisional Practice on the Use of Certain Data by Dominant Operators Outside Digital Networks and Platforms 5.6.3 The FCA´s Decisional Practice on the Terms of Use of Platforms and Networks 5.7 Parity Clauses, Market Power and the Special Liability of Dominant Firms in the Case of Digital Platforms 5.7.1 Effect-Based Analysis from the Perspective of Competition Law 5.7.2 The Per Se Approach Under the ``Restrictive Practices´´ Law 5.7.2.1 The Prohibition of Most-Favoured-Customer Clauses as Such 5.7.2.2 Prohibition of Most-Favoured-Customer Clauses Creating a Significant Imbalance in the Rights and Obligations of the Pa... 5.7.2.3 Sectoral Ban Per Se 5.8 Comparison Portals, the Role of Competition Authorities in Consumer Protection and Other Intervention Tools 5.8.1 Competition Law and the Role of the FCA Regarding Comparison Portals 5.8.2 Consumer Law as a Tool for Understanding the Practices of Comparison Portals 5.8.3 Civil Law and the Role of the Courts 5.9 Abuse and Treatment of Non-dominant Business Practices 5.9.1 The Concept of Abuse of Economic Dependency 5.9.2 Restrictive Competition Practices 6: Germany 6.1 The Collection of User and Device-Related Data 6.2 Determination of Market Power in Digital Markets 6.2.1 Market Shares as Starting Point 6.2.2 Competitive Pressure Through Innovation, § 18 IIIa No. 5 GWB 6.2.3 Network Effects, § 18 IIIa No. 1 GWB 6.2.4 Parallel Use of Networks, § 18 IIIa No. 2 GWB 6.2.5 Economies of Scale, § 18 IIIa No. 3 GWB 6.2.6 Access to Data, § 18 IIIa No. 4 GWB 6.2.7 Relative Market Power and Superior Market Power 6.2.8 Intermediation Power 6.2.9 Undertakings with Paramount Significance for Competition Across Markets 6.3 Platform Markets 6.4 ``Markets´´ for Free Services 6.5 Online Advertising 6.6 General Terms and Conditions with Regard to Data Collection 6.7 Most Favored Nation Clauses and Cooperation Between Content Providers 6.8 Cooperation Between Network Operators 6.9 Comparison Portals and Consumer Protection 6.10 Abuse Proceedings Below the Threshold of Dominance 6.10.1 Relative Market Power Within a Vertical Relationship 6.10.2 Superior Market Power Within a Horizontal Relationship 6.11 Parity Clauses 7: Hungary 7.1 Introduction 7.2 The Role of Data in the Digital Markets: Data Protection Implications in Competition Law 7.3 Platforms 7.3.1 Definition of the Term `Platform´ 7.3.2 Market Power of Networks and Platforms 7.3.2.1 Effect of Online Presence on Offline Market Power 7.3.2.2 The Role of Data in Mergers Between Players of Digital Markets 7.3.2.3 `New´ Merger Regime and Ancillary Restrictions in the Context of Start-Ups 7.3.2.4 Issues Raised in the NetPincér Case 7.4 Market for Free Services 7.4.1 Case Law 7.4.2 Free Services in the Context of DCTs 7.5 Enforcement Measures in the Field of Digital Markets and Online Services 7.5.1 GVH Proceedings Against DCTs Constituting Unfair Commercial Practices 7.5.1.1 DCT as Commercial Practice 7.5.1.2 GVH Case Law Concerning Online Platforms 7.5.2 Sector Inquiries 7.5.2.1 The Outcomes of the Online Accommodation Booking Sector Inquiry 7.5.2.2 The GVH Approach and Case Law on Price Parity Clauses 7.5.3 Market Studies 7.5.3.1 Findings of the DCT Market Study 7.5.4 The GVH´s Case Law on the Responsibility of Dominant Companies in Digital Markets 7.5.5 Other Potential Legal Consequences of the Unlawful Use of DCTs 7.5.6 The Issue of Interim Measures in the Digital Sphere 7.6 Latest Hungarian Developments and Case Law in the Telecommunication Sector 7.6.1 Hungarian Approach Regarding Broadband Competition 7.6.2 Ensuring Effective Consumer Protection 8: Norway 8.1 Introduction 8.2 Norwegian Competition Law and Policy in the Digital Economy: A General Perspective 8.3 Norwegian Digital Competition Policy: Specific Issues 8.3.1 Introduction 8.3.2 Market Definition and Market Power in the Digital Economy 8.3.3 Telecom and Digital Infrastructure 8.3.4 Data Protection and Privacy 8.3.5 Digital Platforms and Online Advertising 8.3.6 Comparison Portals and Sector Inquiries 8.3.7 Abuse Proceedings in the Absence of Dominance 9: Switzerland 9.1 Introductory Remarks on the Approach of the Swiss Competition Authorities in the Digital Economy 9.2 Swiss Digital Competition Policy: Specific Issues 9.2.1 Data Protection and Data Collection 9.2.2 Market Definition and Market Power 9.2.3 Online Advertising 9.2.4 Telecom and Digital Infrastructure 9.2.5 Abuse Proceedings in the Absence of a Dominant Position 9.2.6 Price Parity Clauses 9.3 Conclusion 10: United Kingdom 10.1 Introduction 10.1.1 The Furman Report (2019) 10.1.2 The CMA´s Digital Report (2020) 10.2 UK´s Approach Towards the Market Power of Social Media Networks and Online Platforms 10.2.1 UK´s Approach Towards Defining the Term ``Platform´´ and Other Linked Concepts 10.2.2 Can There Be an Antitrust ``Market´´ for Free Digital Services in the UK? 10.3 Dominant Companies and Special Responsibility Status 10.3.1 Policy Proposals in Response to the CMA´s Digital Report 10.3.1.1 Government Response to CMA´s Digital Report 10.3.1.2 Further Advice from Digital Markets Taskforce 10.4 Digital Networks and Online Platforms: The Interaction Between Competition Law and Data Protection Regulation 10.4.1 Developing Tensions Between Data Protection and Competition Law 10.4.2 Personalised Digital Advertisements and Data Protection 10.4.3 The Increasing Overlap Between Competition Law and Data Protection 10.4.4 CMA´s Treatment of General Terms and Conditions in Relation to Data Collection 10.5 CMA´s Wide Competition and Consumer Protection Powers and Their Application to the Digital Economy 10.5.1 CMA´s Consumer Protection Powers Under Market Investigations 10.6 The UK´s Approach to MFNs 10.7 Conclusion Part II: Legal Framework for Influencers, Native Advertising and Control over the Use of AI in Marketing 11: International Report 11.1 Introduction 11.2 Influencers, Native Advertising and Other Practices of Disguised Advertising 11.2.1 Identification of Practices of Disguised Advertising 11.2.2 Legal Framework Applicable to Disguised Advertising 11.2.3 Fake Reviews and Fake Endorsements 11.3 The Use of Artificial Intelligence in Marketing 11.3.1 Price Discrimination and Artificial Intelligence Under Consumer Law 11.3.2 The Use of Artificial Intelligence in Marketing and Possible Implications Under Competition Law: Risks of Collusion and... 11.3.2.1 Algorithmic Collusion 11.3.2.2 Abuse of Dominance 11.3.2.3 Can Businesses Be Discriminated Due to the Use of Artificial Intelligence? 11.3.3 The Use of Artificial Intelligence in Marketing and Possible Implications Under Data Protection Laws 11.3.3.1 Lawful Processing of Personal Data 11.3.3.2 Transparency Principle for the Processing of Personal Data 12: Austria 12.1 Introduction 12.2 Legal Framework in Influencer Marketing and Native Advertising 12.2.1 Terminology 12.2.2 Labelling Obligations in Influencer Marketing 12.2.2.1 Labelling Obligations According to Sec26 MedienG 12.2.2.2 Labelling Obligations According to Sec31 AMD-G 12.2.2.3 Labelling Obligations According to Sec6 ECG 12.2.2.4 Relevance to Unfair Competition Law and Transparency Provisions Within the UWG Acting in the Course of Trade Transparency Provisions Within the UWG 12.2.2.5 Exemptions from the Labelling Requirement on the Basis of Perceptibility 12.2.2.6 Form of Labelling 12.2.3 Influencer Marketing and Product Liability 12.2.4 The Issue with ``Astroturfing´´ 12.2.5 Conclusion 12.3 Algorithmic Collusion and Personalised Pricing Under Competition Law 12.3.1 Introduction 12.3.2 Algorithmic Collusion 12.3.2.1 Ban on Cartels 12.3.2.2 Application to Different Scenarios Algorithms as Tools to Implement Pre-existing Agreements Parallel Use of Individual Algorithms with No Pre-existing Agreement 12.3.2.3 Attribution and Responsibility 12.3.3 Personalised Pricing 12.3.3.1 Abuse of a Dominant Position 12.3.3.2 Application to Different Scenarios 12.3.3.3 Digression: Austrian Local Supply Act (Nahversorgungsgesetz) 12.3.4 Conclusion 13: Belgium 13.1 Introduction 13.2 The Belgian Legislative Landscape 13.2.1 Unfair Commercial Practices 13.2.1.1 General Legislation 13.2.1.2 Specific Legislation 13.2.1.3 Self-Regulation 13.2.2 Privacy and Personal Data 13.2.3 AI 13.3 Identifiability and the Precise Scope of Advertising Laws 13.3.1 Non-commercial Advertising 13.3.2 Identifiability of the ``Commercial´´ Communication 13.4 Personalisation: Providing the Consumer with Tailor-Made Communication or Product, with or Without Automated Means 13.4.1 Consumer Information 13.4.1.1 Consumer Laws 13.4.1.2 Under Data Protection Laws 13.4.2 Privacy by Design and Accountability Principle 13.4.2.1 Finding the Appropriate Legal Basis for the Processing of Personal Data Privacy Fatigue Freedom to Consent and Agreements Under the New Deal for Consumers Imbalance of Power Between the Data Subject and the Data Controller 13.4.2.2 Influence of Other Legislations 13.4.2.3 Accountability and Transparency 13.4.3 Consumer Rights and Remedies 13.4.3.1 Remedies Under Consumer Law 13.4.3.2 Remedies Under the GDPR 13.4.4 Synergies Between Consumer Law and Data Protection 13.5 Conclusion 14: Brazil 14.1 Personal Data Protection in Brazil and Current Challenges 14.2 Issues in the Light of Enacted Legislation 14.2.1 Search Engines, Artificial Intelligence and Freedom of Contract 14.2.2 Lawful Processing of Data by Chatbots (AI) upon the Closing of Contracts 14.2.3 Use of Artificial Intelligence for Processing Personal Data and Data Protection Impact Assessment 14.2.4 AI Software, Individualized Advertising and the Lawful Processing of Data Under the ``Legitimate Interest´´ Clause 14.2.5 Profiling and Individualized Ads and Prices Under the LGPD 14.2.6 (In)sufficiency of Informed Consent to Data Processing 14.2.7 Consent, Cookie Policy and Access to Internet Services 14.2.8 Black Box Phenomenon and the Transparency Principle 14.2.9 On the Legality of Manufacturers´ Prohibition on the Sale of Their Products on Certain Platforms in Order to Protect th... 14.2.10 Unequal Competitive Conditions and the Use of Artificial Intelligence by Businesses 14.2.11 Algorithms and Discrimination Against Companies in the Placement of New Advertisements 14.3 Issues in the Light of Legal Principles and Propositions for Future Regulation 14.3.1 Transparency and Automated Data Collection 14.3.2 Need for Additional Legal Instruments to Restrict the Collection and Use of Data for the Personalization of Content, Ad... 14.3.3 Creation of User Profiles Which Currently Also Use Data from International Third-Party Sources 14.3.4 Price Collusion Through Artificial Intelligence Software 14.3.5 Ethical Limits of Personalized Prices 14.3.6 Incorporation of Legal Requirements and Ethical Values into the Programming Process of Algorithms to Prevent Discrimina... 14.3.7 Human Tasks That Can Be Carried Out Automatically by AI: Future Developments 14.3.8 Personalized Election Campaigns and Democracy 15: Germany 15.1 Introduction 15.2 Algorithms´ Influence on the Customer´s Contractual Freedom 15.2.1 Algorithmic Forecast and Individual Autonomy 15.2.2 The Instrument of Informed Consent 15.2.3 Improvement of Transparency 15.2.4 The Right to Explanation 15.3 Unfair Commercial Practices and the GDPR 15.4 Commercial Practices in the Debate 15.4.1 Influencing 15.4.1.1 Introduction 15.4.1.2 Recent Case Law 15.4.1.3 German Bill to Strengthen Consumer Protection in Competition and Commercial Law 15.4.2 AI and Marketing 15.4.2.1 Data Quality 15.4.2.2 The Use of Incorrect Data 15.4.2.3 Data Management 15.4.2.4 National Restrictions on the Creation of User Profiles That Also Use Data from International Third-Party Sources 15.4.2.5 Unequal Competitive Conditions Due to the Use of AI 15.4.2.6 Discrimination Against Companies That Were Not Subject to Previous Purchase Decisions 15.4.2.7 Legal, Social and Ethical Values to Prevent Discrimination 15.4.2.8 Prohibition of AI Marketing in Certain Areas of Life 15.4.3 Personalised Prices 15.4.3.1 Interference with Art. 22 (1) GDPR 15.4.3.2 Further Data Protection Requirements 15.4.3.3 Price Collusion Due to the Use of the Same or Similar Algorithms 15.4.3.4 Collusion of Algorithms to Achieve Higher Prices 15.4.3.5 Promotion of the Stability of Cartels Through the Use of Price Algorithms 15.4.3.6 Combating Consumer Discrimination Through Consumer, Competition and Unfair Competition Regulations 15.4.3.7 Prohibition of the Use of Price Algorithms in Certain Areas of Life 15.4.3.8 Consumer-Friendly Algorithms 15.4.4 Prohibition of Online Distribution 15.4.4.1 Prohibition of the Sale of Products on Certain Platforms 15.4.4.2 Prohibition of Product Advertising on Search Engines 15.4.5 Product Liability 15.5 The Impact of Personalised Political Campaigns on Democracy 15.6 Future Perspectives 15.6.1 Specific Regulatory Instruments 15.6.2 No Need to Establish Special Units 15.6.3 Codes of Conduct 15.6.4 A Vigilant and Learning Approach 15.7 Conclusion 16: Hungary 16.1 Introduction 16.2 Privacy Implications 16.2.1 Lawfulness and Purpose Limitation 16.2.2 Transparency 16.2.3 Accuracy and Data Quality 16.2.4 Fairness 16.2.5 Integrity and Confidentiality 16.2.6 Data Minimisation 16.2.7 Storage Limitation 16.3 Consumer Protection and Competition 16.3.1 Market Power and the Use of AI 16.3.2 Algorithmic Collusion 16.3.3 Consumer Discrimination in Pricing 16.3.4 Online Sale Restrictions 16.3.5 Practice in Hungary as to Influencer Marketing 16.4 Enforcement