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2018 Llanos Morales Jose Tomas 1227957 Ethesis This electronic thesis or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ The enforcement of Article 102 TFEU in online markets online platforms, Big Data and the intersection between competition, data protection and consumer protection law Llanos Morales, Jose Tomas Awarding institution: King's College London The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENCE AGREEMENT Unless another licence is stated on the immediately following page this work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence. https://creativecommons.org/licenses/by-nc-nd/4.0/ You are free to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). Non Commercial: You may not use this work for commercial purposes. No Derivative Works - You may not alter, transform, or build upon this work. Any of these conditions can be waived if you receive permission from the author. Your fair dealings and other rights are in no way affected by the above. Take down policy If you believe that this document breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. Download date: 07. Oct. 2021 The Enforcement of Article 102 TFEU in Online Markets: Online Platforms, Big Data and the Intersection between Competition, Data Protection and Consumer Protection Law José Tomás Llanos Morales THESIS SUBMITTED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY OF LAW KING´S COLLEGE LONDON Table of Contents Acknowledgments ..................................................................................................... 6 Table of Abbreviations .............................................................................................. 8 Abstract .................................................................................................................... 12 Introduction ............................................................................................................. 13 CHAPTER 1. Diverging Views on the Role of Article 102 TFEU in the Digital Economy .................................................................................................................. 18 Introduction ............................................................................................................. 18 I. Digital Markets and their Main Characteristics .................................................. 20 II. The Regulatory Approach .................................................................................. 23 1. Pro-regulation Arguments ............................................................................................ 23 2. Arguments against ex-ante Regulation ........................................................................ 24 III. The Hands-Off Approach ................................................................................. 27 1. Arguments supporting a Hands-off Approach ............................................................. 27 2. Arguments against the Hands-off Approach ............................................................... 31 IV. Conclusions ....................................................................................................... 35 CHAPTER 2. Online Platforms and Big Data ....................................................... 37 Introduction ............................................................................................................ 37 I. Online Platforms ............................................................................................... 38 1. General ....................................................................................................................... 38 2. Benefits and Types of Online Platforms ................................................................... 40 3. Characteristics of Online Platforms .......................................................................... 42 3.1 Network Effects ...................................................................................................................... 42 3.2 Pricing Asymmetry .................................................................................................................. 45 3.3 Collection and Processing of Data ........................................................................................ 47 3.3.1 General .............................................................................................................................................. 47 3.3.2 Roles of User Data .......................................................................................................................... 48 3.3.2.1 Data as an Input of Production ............................................................................................ 49 3.3.2.2 Data as a Strategic Asset ........................................................................................................ 51 3.3.2.3 Data as a Product .................................................................................................................... 52 II. BIg Data and Big Analytics ............................................................................ 53 1. General ....................................................................................................................... 53 2. What are Big Data and Big Analytics? ...................................................................... 55 3. Types of Data ............................................................................................................ 58 4. The ‘Data Advantage’ ............................................................................................... 60 4.1 Benefits of Big Data ................................................................................................................ 60 4.2 Hunger for Data ...................................................................................................................... 61 5. Big Data Advantage and Market Power ................................................................... 63 5.1 The Commission’s Criteria: Ease of Replicability of Data (or data difficult to replicate) - Availability (or scarcity) of Data ................................................................................................... 63 5.1.1 TomTom/Tele Atlas ...................................................................................................................... 64 5.1.2 Google/DoubleClick ...................................................................................................................... 65 5.1.3 Telefónica UK/Vodafone UK/Everything Everywhere/JV ................................................... 67 5.1.4 Facebook/WhatsApp ..................................................................................................................... 68 5.2 Critique of the Commission’s Criteria .................................................................................. 69 5.2.1 Predictions and Assumptions of an ex-ante Assessment may be Mistaken ........................... 69 5.2.2 Problems with the Commission’s Criteria ................................................................................... 71 2 5.2.2.1 Data can be Obtained from Third Parties .......................................................................... 72 5.2.2.2 Data is Non-rivalrous and Non-exclusive .......................................................................... 73 5.2.2.3 Limitations to Data´s Features and Implications: Data is not Fungible, and may not be readily Available to all Undertakings ............................................................................................... 73 5.2.3 The Role of ‘Volume’, Trial and Error/Learning-By-Doing, ‘Variety’, ‘Velocity’ and Spill- Overs 79 5.2.3.1 Volume (scale of data) and Learning-by-doing .................................................................. 79 5.2.3.2 Variety (scope of data) ........................................................................................................... 83 5.2.3.3 Velocity (economies of speed) .............................................................................................. 85 5.2.3.4 Spill-overs (network effects amplified by data-driven network effects) ......................... 87 III. Conclusions, a Data-Advantage Test and a Few Caveats ............................. 88 CHAPTER 3. Market Definition and Dominance in Online Markets ................... 93 Introduction ............................................................................................................ 93 I. Market Definition ................................................................................................ 96 1. General .......................................................................................................................... 96 2. Competitive Constraints ............................................................................................... 96 3. Market Definition and Market Power .......................................................................... 98 4. Problems concerning Market Definition in Online Markets ......................................
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