Advancing Digital Rights through Competition Law

Advancing Digital Rights through Competition Law

By Jonathan McCully, 9th December 2019

How can we leverage competition law to protect and promote our digital rights? This question was raised during DFF’s strategy meeting earlier this year, where we asked digital rights organisations from across Europe what their priorities were and what DFF could do to best support them. A number of participants talked about their interest in engaging with competition law claims, alongside data protection and human rights ones, to hold platforms to account for abusive and infringing conduct.

The topic had come up at previous DFF events, which is not surprising given that European institutions in recent years have demonstrated a willingness to enforce aspects of competition law against Big Tech companies. In June 2017, for example, the European Commission fined Google €2.42 billion for abusing its dominance in the search engine market. Since then, Google has been fined two further times by the Commission over anti-competitive practices. Discussing this at the strategy meeting, participants concluded that there may be opportunities to enforce this area of law in a way that also advances digital rights. Before pursuing such opportunities, however, they noted it would be useful to build more knowledge on how competition law might be applicable to the platform or big data economy, and how such issues can be litigated.

To help facilitate deeper thinking and discussion on the topic, DFF has published “A Short Guide to Competition Law for Digital Rights Litigators.” The guide, written by Aaron Khan of Brick Court Chambers, provides an overview of the key principles of EU competition law accompanied by specific examples of how these principles might apply to the digital or technology sector. The guide also sets out steps digital rights litigators can take if they identify potential infringements of competition law in the digital space, including an overview of the positive and negative aspects of pursuing complaints with the European Commission and/or litigation on the topic. We hope that this guide will be a useful resource for digital rights litigators who wish to engage in competition law issues as part of their ongoing and future work.

This week, we are excited to be testing this guide at a two-day training workshop in Brussels. The workshop, supported by the NetGain partnership, will bring together over twenty digital and consumer rights organisations from the US, Europe and Latin America. During the two days, participants will consider the EU competition law framework and discuss potential opportunities to enforce this framework as a means for protecting and promoting digital rights. Lawyers who have already identified and challenged competition law infringements by Big Tech companies, such as Google and Facebook, will share their personal experiences and organisations working on competition law issues in Europe and America will discuss the similarities and differences in approach in their jurisdictions, and where there might be opportunities for transatlantic co-operation on cases.

Next year, we would like to build on the work covered during this workshop with a follow-up meeting in Spring 2020, where participants will carry out some deeper planning around how they can practically engage with competition law issues in their work, including through litigation. We look forward to seeing how we can support this work in the new year. In the meantime, keep an eye on our blog for updates and guest posts following the workshop to find out what was discussed at the event!