Privacy law meets antitrust – EU Commissioner Vestager on data in competition law; ECJ to rule on admissibility of Privacy class actions; Northern District of California Sends Yelp Privacy Suit to the Jury; EU Advocate General finds EU-Canadian PNR pact unlawful; New York Unveils New Cyber Security Rules for Financial Services Organizations; New Jersey Senate Passes Shopping Privacy Bill; NIST Issues Mobile Threat Guidance

Privacy law meets antitrust – EU Commissioner Vestager on when privacy issues can lead to antitrust concerns

European Competition Commissioner Margarethe Vestager has commented on the relevance of privacy issues with regard to EU antitrust rules. According to Vestager, current investigations of the German Federal Cartel Office regarding Facebook’s “privacy issues” would “not necessarily” lead to competition law concerns, even though both fields of law might correlate under certain circumstances.

In the investigations at issue, the German Federal Cartel Office is alleging Facebook of abusing an alleged ‘dominant position’ in the market for social networks by imposing unfair conditions regarding the privacy settings for Facebook accounts on its users. The German antitrust regulator is arguing that users would have “no choice” whether to accept the conditions or to terminate their account, because there is no real alternative to the well-known social network. Under Article 102 of the Treaty on the Functioning of the European Union (‘TFEU’), “dominant companies are subject to special obligations. These include the use of adequate terms of service as far as these are relevant to the market.”

It still remains to be seen whether Facebook will ultimately be found in breach of EU antitrust rules relating to its Privacy Policy. On a more general matter, however, the Commissioner’s statements seem to confirm that indeed, companies controlling vast amounts of data may be considered able to prevent market entry by withholding this data from potential competitors who could not reproduce comparable datasets themselves and therefore might violate Article 102 TFEU. Companies that might fall in this category should therefore be prepared that not only privacy regulators, but also antitrust authorities might potentially be questioning them regarding their use of data in the future. Nevertheless, “simply holding a lot of data” would not be enough to raise antitrust suspicions, Vestager appeased.


Continue Reading

The Department of Justice and the Federal Trade Commission on April 10 issued Antitrust Policy Statement on Sharing of Cybersecurity Information, a joint policy statement that provides critical infrastructure industries the clarity they need to share cybersecurity information among themselves to combat cyber threats without violating the antitrust laws those agencies enforce. The agencies note that “properly designed cyber threat information sharing is not likely to raise antitrust concerns and can help secure the nation’s networks of information and resources.” The benefits of sharing this highly technical information are significant: sharing increases the security, availability, integrity, and efficiency of information systems, which in turn, leads to a more secure and productive nation. The agencies make clear that they “do not believe that antitrust is—or should be—a roadblock to legitimate cybersecurity information sharing.” This policy statement is meant to provide more certainty to the concerns private companies have raised as the threats to our nation’s infrastructure and information systems increase in number and sophistication.
Continue Reading