Privacy breaches in platform mergers: lessons from Brazil
Privacy Harms in Platform Mergers: Lessons from Brazil
Introduction
In recent years, several antitrust authorities have expressed increasingly significant concerns about the erosion of privacy in digital markets. 2 Influential commentators argue that antitrust and privacy policies are now converging on their goals of protecting individuals against the asymmetry of economic power. 3 More conservatively, it can be argued that at least two regimes can clash at their edges, much as has been observed between antitrust and intellectual property or consumer protection legislation. 4
It is challenging to trace harm theories from merger analyses related to violations of data protection legislation. At first glance, there is a mismatch in the nature of the harms caused by platforms under each legal regime. While data protection laws are concerned with risks to privacy from the perspective of individual rights, antitrust law, from a more economic approach, is concerned with impacts on consumer surplus or total surplus. 5 However, when addressing mergers of dominant platforms, two instances of intervention can overlap in unexpected ways.
This brief contribution explores how the Brazilian competition authority (“CADE”) handles complaints of violations of the General Data Protection Law (Law 13.709/2018) in platform merger analyses. We affirm that, in recent cases, CADE has treated privacy as a parameter for the quality of competition in both the digital and non-digital markets. From this perspective, a possible one-sided effect of the merger could be to reduce competitive pressure for more protective terms and conditions for the user on the platform.
CADE's approach has produced decisions that, similarly to those of the European Commission, eliminate concerns related to violations of data protection law in antitrust merger control. Moving towards more interventionist outcomes would require overcoming the theoretical and practical obstacles explored in this article. Overcoming these obstacles depends on regulatory choices that ultimately redefine the very limits of antitrust policy.
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