Competition And Data Protection In Digital Markets: UK’s CMA-ICO Joint Statement On Competition And Data Protection Law – Anti-trust/Competition Law

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On May 19, 2021, the UK’s Competition and Markets Authority (“CMA”) and the Office of the Information Commissioner (“ICO”) issued a joint statement expressing their shared views on the relationship between competition and data protection in the digital economy.

Both agencies recognize that the digital economy has the potential to make extremely positive impacts on people’s lives, from improvements in public services to companies driving the innovations that they can make a difference. However, they have made it clear that their collective position is that this can best be achieved when digital markets are competitive, consumer and privacy rights are respected, and citizens are empowered to exercise meaningful control over their own data. In their opinion, there are strong synergies between the interests of data protection and competition, as the close cooperation between the CMA and ICO in recent years shows.

Summary of the main results

The joint statement sets out the shared views of the CMA and ICO on the relationship between competition and data protection, in particular with regard to:

  • the important role that data – including personal data – play in the digital economy
  • the strong synergies between the goals of competition and data protection
  • the way the CMA and ICO work together to overcome perceived tensions between their goals; and
  • practical examples of how the CMA and ICO are already working together to deliver positive results for consumers

The proposed work plan specifies how the authorities are taking a common regulatory approach across the UK digital regulatory landscape, with practical steps to strengthen their respective ability to work together, as well as ambitious plans to support skills sharing, including deployment programs, team building and Development of a joint competence center. Both agencies make it clear that they are committed to developing and promoting a culture of collaboration and collaboration and note that they are already collaborating on some of their key investigations. According to the joint statement, this shows how UK consumers will benefit from a collaborative approach between the two authorities.

For example, the joint statement describes the investigation of the CMA’s competition law into Google’s proposals to discontinue support for third-party cookies in its Chrome browser and replace it with a “privacy sandbox” approach. In addition to examining the impact of the proposals on competition in the digital advertising markets and on user experience, the investigation will also consider the ICO’s consideration of data protection issues. Similarly, the ICO’s investigation into the use of personal data in real-time bidding in digital advertising is another example described in the joint statement. In this investigation, the ICO focuses on the privacy aspects of a system that processes the personal data of millions of people on a daily basis through a series of audits. The investigation will now also include consideration of the competitive impact of competition on CMA.

The joint statement makes it clear that the CMA and ICO will continue to proactively address these issues that affect the digital economy, including through the work of the UK Digital Regulation Cooperation Forum.

Ultimately, the joint statement recognizes that the CMA and ICO will continue to ensure that their overlapping objectives on competition and data protection in the context of the UK digital economy are closely aligned and complementary. According to the CMA and ICO, more competitive markets will deliver the results that matter most to consumers. This increasingly includes improved data protection and better control over personal data. In addition, both the CMA and the ICO have concluded that their relationship is mutually reinforcing: they believe that well-designed regulations and standards that protect people’s privacy and give individuals control over their personal information, can promote positive competition results. In turn, with appropriate and targeted regulation, competitive pressures can be used to incentivize responsible innovations that protect and support users. In addition, they each believe that creating what is known as a level playing field is essential for effective competition to flourish. In this respect, data protection laws help create a level playing field in data access by ensuring that the processing of personal data by all parties is fair and lawful and that the rights of the individual are protected.

Practical implications of the collaboration between the CMA and the ICO

Notwithstanding their commitment to working together, the Joint Declaration itself highlights the existing tensions between competition law and data protection law, including the use of data-related interventions to address an identified competition law issue. The joint declaration contains examples from the CMA’s market study on online platforms and digital advertising, in which the CMA found that certain market participants, in particular so-called digital gatekeepers, have significant data advantages through access to search data for clicking and querying. User profile data and advertising analysis data. Much of the intervention or remedial action proposed by the CMA concerned data, including expanding access to digital gatekeepers’ records for smaller competitors or new entrants. However, such access intervention to third parties per se leads to a conflict with existing data exchange and data protection obligations, which are incumbent on so-called “controllers” of personal data. However, the CMA and ICO insist that “perceived tension” can be avoided or otherwise resolved by “carefully designing relevant data access measures so that they are limited to what is necessary and proportionate”.

The joint statement concludes with the recognition that a case-by-case analysis is likely to be necessary to resolve the tensions between competition and data protection law. Therefore, while the authorities clearly intend to work constructively with one another, they do not commit to a consistent approach in carrying out their respective reviews and assessments of companies’ obligations under applicable competition and privacy laws.

Conclusion

The joint declaration clarifies that the CMA and ICO are obliged to cooperate both with regard to regulatory and legal developments on the one hand and with regard to collective or otherwise supplementary investigations and other enforcement measures on the other. While the joint statement sets out the public authorities’ obligation to work together, it provides very little actual or practical guidance for companies handling large amounts of personal data (especially companies performing data-related activities in the UK digital economy) . In terms of key findings, however, it is clear that any company handling personal data in the UK must consider the close relationship between the CMA and ICO, including potential joint investigations or at least the exchange of information between US authorities, to ensure that they are at alleged violations of competition and / or data protection laws are coordinated. The UK regulatory landscape is also expected to continue to evolve, particularly with regard to the use of data-driven remedies and outcomes when perceived competition law violations are addressed by companies involved in or otherwise processing large amounts of personal data in the UK become .

Competition and Data Protection in Digital Markets: Joint CMA and ICO Declaration on UK Competition and Data Protection Law

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