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Divorce between Personal Data and Competition Law

The announced marriage between Personal Data and Competition Law arising from the decision of the German Competition Authority seems dissolved after the decision of the Dusseldorf Regional Superior Court to suspend the effects of the ruling with which it sanctioned Facebook for allegedly violating the rules of competition. According to the Court, the loss of control over the data does not per se constitute damage to the consumer.

Last week the Superintendent of Industry and Commerce, Andrés Barreto, said in an interview that the data was the new oil, indicating that “in terms of free competition, the fact is that with the data you can trace, limit, capture, and influence consumer's decision or the market balance”. Under the previous consideration, the rules related to personal data threatens to broaden its spectrum of application from a Data Protection perspective to one of Competition Law. The alleged marriage between personal data and competition has been strongly discussed this year in Europe and its rulings will be relevant to further decisions of other Authorities around the globe.

Last February, the discussion reached one of its highest peaks with the decision of the German Competition Authority against Facebook, which stablished that the violation of GDPR rules by the company (such as the request for consent to data subjects for a wide scope of collection via other services owned by the company such as Whatsapp and Instagram so that the subject had access to Facebook, as enshrined in the Terms and Conditions of the company), was a restriction on competition, based on the assumption that Facebook had a dominant position in the market.

The Dusseldorf Court of Appeals decided to suspend the effects of the first instance ruling on the grounds that the judicial reasoning presented serious doubts. According to the Court, the Terms and Conditions introduced by a company with a dominant position are considered abusive under the parameters of German competition law, only if these causes negative effects on consumers and this condition was not satisfied or proved in the process. For the Court, the infringement of the data protection rules that results in a loss of control of the data subject over their own data, doesn’t meet the criteria described above to cause damage to the consumer.

For now, the approach in Colombia regarding competition law and the digital economy has been given mainly from the perspective of unfair competition. However, Superintendent Andrés Barreto in the aforementioned interview said that the effects of the control of personal data regarding free competition and the conditions of dominant position must be deeply evaluated. For the above, this recent decision of the Dusseldorf High Court that contains relevant criteria on the subject, should not be lost sight of.

Authors

Lorenzo-Villegas-CMS-Colombia
Lorenzo Villegas-Carrasquilla
Partner
Bogotá
Maria Alejandra Soler 2-CMS-Colombia
Alejandra Soler
Associate
Bogotá