On February 10, 2020, the Italian Competition Authority (the “ICA”) published its final report in the big data sector inquiry carried out jointly with the Italian Data Protection Authority (the “IDPA”) and the Italian Communications and Media Authority (the “ICMA”).[1]

The joint sector inquiry

On May 30, 2017, the three authorities launched a joint sector inquiry into the effects of big data and its consequences in relation to the current economic, political and social context and the regulatory framework in force.[2]

Between November 2017 and November 2018, the three authorities sent out requests for information to market participants and held hearings with representatives of firms active in the telecommunications, media, over-the-top, information technology, insurance and banking sectors, as well as with experts in the field.

In June 2018, the ICA and the ICMA published interim reports with their preliminary findings.[3] Moreover, on July 10, 2019, the three authorities published guidelines and policy recommendations, anticipating the findings of the final report.[4]

Finally, on February 10, 2020, the three authorities issued the final report. In the report, the three authorities separately give their take on big data and its competitive value.

The ICMA’s and the IDPA’s findings

The ICMA noted, inter alia, that the concentration of big data in the hands of a few online platforms could lead to the creation of dominant positions in the media sector.

In this respect, the ICMA mentioned that, on July 18, 2019, it opened proceedings to investigate the possible existence of dominant positions or, in any case, positions capable of harming pluralism of information in the online advertising sector.[5] The proceedings stem also from the data collected during the joint sector inquiry and represent the first market investigation directly involving online platforms. The proceedings are currently ongoing and could lead to the imposition of remedies, if necessary to regulate possible dominant positions.

The ICMA found that OTT companies offer services that very often are in direct competition with traditional electronic communications services. This convergence brought traditional telecommunications service providers to ask for a regulatory level playing field, which includes consolidated rules on access rights and interconnection services.

The ICMA also noted that Directive 2018/1808/ EU, on media services, and the new European Electronic Communications Code (Directive 2018/1972/EU) extend to online platforms and operators some obligations that so far have been imposed only on traditional media and telecommunications service providers. As a consequence, for example, national regulators can impose regulatory measures on certain online platforms to allow for the interoperability of their services.

The IDPA stressed, inter alia, the importance of providing users with transparent information when asking for their permission to use their data. Companies must always specify for which purposes they are asking data, and must be taken accountable for any misuse. According to the IDPA, this preliminary information has a competitive value, as it can influence consumers’ commercial choices, just like preliminary information on products. In particular, in the case of goods provided for free, the IDPA stated that it is crucial that the owner of the data is able to: (i) monitor the use that companies will make of their data; and (ii) check whether this use is compliant with the purposes that were initially declared.

The ICA’s findings

According to the ICA, big data can play a crucial role in the assessment of the competitiveness of data-driven economies, as it is one of the factors that may increase concentration and barriers to entry in digital markets.

For instance, in two-sided markets big data can increase network effects, scale and scope economies, as well as switching costs, by creating lock-in effects. In addition, big data can act as a barrier to entry in those markets where firms are able to exploit machine learning algorithms and mechanisms to gain a significant competitive advantage.

According to the ICA, in some transactions data can be seen as the price consumers pay to have a certain service. In other cases, the treatment of data by online operators can be compared to the features affecting the quality of the service offered on the market. So, for example, a service that protects consumers’ privacy is comparable to a higher quality service, and vice versa.

In the big data sector, conduct falling under the scrutiny of antitrust authorities may take place at all stages of the industrial chain, including data collection, management and processing for the provision of services and their customization.

All the pillars of competition law may be concerned when dealing with big data and privacy issues: restrictive agreements, abuses of dominant positions and merger control. For instance:

  • horizontal agreements aimed at lowering privacy standards can be treated as agreements aimed at raising prices. Moreover, agreements between firms that have as their object the sharing of personal data of their users may raise critical issues where they could facilitate coordination of the commercial policies of these companies;
  • conduct of firms having “too much” data (resulting in strong market power) may be assessed under Article 102 TFEU as exploitative or exclusionary

Conduct aimed at using big data to draw accurate profiles of consumer preferences and engage in price discrimination between customers may potentially constitute a form of imposition of unfair trading conditions under Article 102(a) TFEU. However, in order to assess whether price discrimination at a retail level can be considered lawful or not, it is important to build up a test that factors in both the utility for the consumers that end up paying a lower price than the market price, and the disutility for those who end up paying a higher price.

In the ICA’s view, big data can also facilitate forms of refusal to deal. However, a refusal to grant access to data may constitute an obstacle to competition and result in abusive conduct, in the form of a refusal to contract, only in exceptional circumstances, i.e. where, taking into account the specificity, quantity and quality of the data concerned, the latter incorporates the stringent requirements of an essential facility for the provision of a particular service.

Data analysis and processing activities (analytics, cloud computing and data storage) can facilitate the implementation of other exclusionary practices. In particular, possible abuses of dominant position may take place where a dominant firm (i) uses data collected in a market to unduly extend its market power through anticompetitive conduct such as tying (leveraging), or (ii) provides services to a third party against which it competes at a different level of the supply chain (discriminatory practices);

  • finally, in merger control, competition authorities may also start assessing the effects of a concentration on privacy in a similar way to how they look at the effects on

Guidelines and policy recommendations

Among various policy recommendations, in the Guidelines and policy recommendations attached to the final report on big data, the authorities:

stressed the importance of antitrust enforcement and, in particular, tackling abusive conduct and restrictive agreements in the digital economy, which may be facilitated by the development of new software and sophisticated algorithms (point 7).

To safeguard consumer welfare, they suggested not to limit the antitrust analysis to the traditional parameters linked to prices and quantities, but to extend it to quality, innovation and fairness;

asked the competent authorities to reform national and international merger control rules (point 8).

In their view, competition authorities should be entrusted with the power to assess mergers that fall under statutory thresholds, in order to avoid so-called “killer acquisitions”, which may negatively affect the competitive pressure exercised by small and innovative start-ups.

In addition, the authorities asked the Parliament to introduce the EU merger control test (namely, the so-called substantial impediment to effective competition, or “SIEC”, standard) into Article 6(1) of Law No. 287/90, as this test would better serve the competitive challenges of the digital era.

[1]              Indagine conoscitiva sui Big Data, Case IC53.

[2]              ICMA Decision No. 217/17/CONS; ICA Decision No. 2660 of May 30, 2017, Case IC53; IDPA Decision of May 11, 2017.

[3]              See ICA, Indagine conoscitiva sui Big Data. Analisi della propensione degli utenti online a consentire l’uso dei propri dati a fronte dell’erogazione di servizi published on June 8, 2019; ICMA, Big data Interim report nell’ambito dell’indagine conoscitiva di cui alla delibera n. 217/17/CONS, published on June 8, 2018.

[4]              Linee guida e raccomandazioni di policy, published on July 10, 2019.

[5]              Decision No. 356/19/CONS.