As we approach calendar year end, traditionally the busiest period of the year for mergers and acquisitions, it is worth revisiting whether our existing competition law framework can and does properly assess the market power of big data.
This spring, The Economist magazine joined the ranks of some antitrust regulators, particularly from the EU, in questioning whether today’s measures of anti-competitive behavior, whether the proposed activity would result in higher prices or unfair competition, don’t really apply to low cost or free products and services offered by Facebook, Google and other big data companies. Also, many of the proposed merger transactions among data companies occur under the radar because the selling party’s balance sheet or its annual revenue falls below pre-merger review thresholds. Some acknowledge that other antitrust tests may still be relevant, such as evaluating the vertical foreclosure effects of a potential merger between two companies, one that collects consumer data and the other that sells targeted online advertising. The combination would well result in a powerful market player with the ability to deliver targeted marketing to millions of consumers.
The Economist piece posits that because competition has changed due to the sheer volume of data, competition law must “reboot” in order to properly assess and redress unfair competition and market power. Data driven companies are more valuable than comparable companies with larger sales because of their ability to collect data viewed as valuable for the future economy. For example, the magazine points out that car company Tesla is valued higher than stalwart General Motors, despite having only a fraction of its sales, at least in part due to the potential of its self-driving car data. Valuing data driven companies in this manner gives them more financial flexibility to operate and grow; in turn making them even more valuable, commanding purchase and stock prices that bear little relationship to their balance sheet.
Antitrust authorities and commentators point out another difference with the data economy. These large data players have a virtual crystal ball to see both today’s and tomorrow’s emerging global marketplace. Big data companies collect searching, sharing and purchasing data and from that know what is important to consumers. They also see what new products and services are offered in their app stores and on their platforms and operating services and where there is growth. Basically, they know what is trending before the market and outside companies know. With that early knowledge, they can develop a competing product or service to meet or defeat the potential future competition, or in the case of Facebook purchasing the start-up messaging service WhatsApp, simply acquire it. Facebook’s 2014 acquisition of WhatsApp is viewed by many competition experts as a watershed moment for this reason.
Today’s antitrust remedies also fall short, according to many commentators and authorities. Simply breaking up data companies, like we did with big oil a century ago only delays the effects. Rather, as The Economist and others suggest, change competition law to consider the combined data assets of the selling and buying companies when evaluating the anticompetitive effects of their potential merger. Consider whether having the combined data makes them and the marketplace more or less competitive.
A second The Economist recommendation is to loosen the grip data companies have on consumers’ data by making the collection and economics of consumer data more transparent and accessible to consumers. Allow consumers to see what their personal data and understand how it is collected and used. Permit consumers to have control with how and with whom their data is shared. Components of the second recommendation are included in the EU’s new privacy law, GDPR. Perhaps the next step in considering the competition issues is to evaluate the effect, if any, consumers’ rights under GDPR has on big data companies and their valuations and competition.