Privacy as a Parameter in Antitrust Investigations: A Comparative Critical Appraisal

Privacy as a Parameter in Antitrust Investigations: A Comparative Critical Appraisal

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Volume 16 Issue 1 ()

Consumers today readily divulge their personal data irrespective of the serious concerns regarding privacy. This paper argues for locating privacy as a parameter in Indian competition law for assessing claims of abuse of dominance. Relevant metrics such as maximisation of consumer welfare, data protection, and maintaining openness of markets are analysed in considering whether privacy can be accommodated within the goals of competition law. By showing how privacy is important from both economic and non-economic viewpoints, its relevance in antitrust analysis is sought to be established. This is done by arguing for its relevance in zero-price markets, and in noting the significance of privacy in driving competition for ‘free’ services. Having established privacy as an anti-trust parameter, this paper proceeds to determine the relationship between privacy and competition, their apparent anti-complementarity and its resolution. Finally, through an analysis of how various developed competition law regimes have incorporated provisions to reflect the nature of digital markets it draws lessons for a similar integration in India.

Cite as: Arya Kant & Shailja Beria, Privacy as a Parameter in Antitrust Investigations: A Comparative Critical Appraisal, 16 NUJS L. Rev. 107 (2023)