Competition law enforcement: a tool for digital rights litigators

Competition law enforcement: a tool for digital rights litigators

By Nani Jansen Reventlow, 12th December 2019

How is competition law relevant to digital rights? How can digital rights litigators harness the competition law framework to further their work on data protection, freedom of expression and other digital rights issues? How can litigators in Europe and America collaborate and co-ordinate on competition law enforcement? 
 
These questions were explored during a 1,5-day training in Brussels this week, which brought together lawyers, researchers, funders and digital rights activists to learn more about the possibilities offered by the competition law framework and explore the opportunities for leveraging this powerful tool to advance digital rights both in Europe and across the Atlantic. 
 
The topic of competition or antitrust law has been a recurring topic of conversation at DFF meetings since its the first strategy meeting in 2018. This week, we were delighted to follow up on the request for more skillbuilding in this area by hosting a training session delivered by Aaron Khan from Brick Court Chambers, complemented by an international panel discussion and a set of key note talks. The meeting was supported by the NetGain Partnership, whose work currently focusses on better understanding the scale of dominant platforms’ influence and the increasing number of harms caused by such platforms.
 
After a keynote speech from Liza Lovdahl-Gormsen from BIICL, which informed participants of the possibilities that competition law had to offer in comparison with other regulatory frameworks such as the GDPR, it was time to zoom in on the legal basics. The training set out the  parameters for bringing competition law claims, familiarising participants with the legal rules and the options for pursuing breaches, both through complaints with the European Commission or national authorities and through litigation. The training unpacked the concepts and information contained in “a short guide to competition law for digital rights litigators“, which provides an overview of the main principles of EU competition law and how they are applicable and enforceable in relation to the digital sector.
 
An international panel with representatives from consumer law and human rights-focused organisations from Europe and the US (Article 19, BEUC, Knight First Amendment Institute, Open Market Institute, Privacy International and Public Knowledge), looked at how these two jurisdictions interact and complement each other and where the next opportunities might lie to take action on protecting digital rights. This was complemented by the perspective from Brazil, where consumer organisation Idec has been exploring digital rights litigation. The keynote address on day two nicely built on what had been learned during the training the previous day: Thomas Vinje of Clifford Chance shared his personal experience litigating a number of key competition cases against Big Tech. 
 
After a practical look into how to file a successful complaint with the European Commission and a brainstorming session on potential future cases, Jonathan Todd –– former journalist and former European Commission spokesperson –– discussed with the group how to effectively communicate competition law issues to the public. Conversations continued long after the session had been drawn to a close, demonstrating the energy and enthusiasm participants brought to the meeting.
 
We are very excited to have had the opportunity to host this meeting, which clearly addressed a desire for further learning from the field. In the spring of this coming year, we will build on the conversations of this week with a second workshop that will do deeper strategising around what key competition issues might be ripe for litigation or other action by the digital rights field.
 
While competition law, as was discussed during the workshop, is not the solution to all digital rights challenges, it can be an effective tool worth exploring and one that will be a valuable addition to digital rights litigators’ toolbox in fighting for our human rights in the digital sphere. We are looking forward to exploring further where competition law might fit in with the field’s other important work in protecting and pomoting digital rights.