Big Data as an Essential Facility : the Possible Implications for Data Privacy

This thesis covers the interplay and possible conflicts between EU competition law and data privacy regulation in relation to big data containing users’ personal data that companies possess. The research questions concern whether dominant companies can be forced to grant access to their data sets to their competitors. The thesis will then analyze whether as a result of granting such access, companies could violate the applicable privacy regulations by sharing their users’ personal data without adequate consent from them. According to EU competition law, there has to be an abuse of a dominant position for the prohibitions of EU competition law to apply. This thesis will first seek to define whether big data can amount to an essential facility and as a result become a tool for abuse. The answer to the above question depends largely on the nature and uses of the particular data set. Another factor having relevance is the market structure and possible entry barriers present. The thesis will then provide an overview of the EU General Data Protection Regulation (‘’GDPR’’), which provides for rules concerning the processing of personal data of individuals. Under the GDPR, once personal data has been collected, it can only be used for the purpose it was collected for unless consent is provided by the data subject. Furthermore the GDPR places emphasis on information duties to the individuals whose data is being processed. As a result there is legal uncertainty for companies that face requests from competitors for access to their data. Furthermore it might not prove to be simple task for the regulators and courts to assess when access to data truly is necessary and on what terms such access should be granted and monitored. The conclusion is that data can under certain circumstances amount to an essential facility, without which other companies cannot survive on the markets. This is however a case specific issue and cannot be assumed automatically. Imposing access too readily risks reducing the incentives for the companies to invest in big data. On the other hand when granting access to a competitor, the provisions of the GDPR should be complied with. The situation is not satisfactory and there is considerable legal uncertainty for companies facing requests to share their data sets containing personal data. The thesis recommends that sector specific regulation might be the answer to these concerns.