European Data Protection Digest

Commissioner Threatens Antitrust Investigations for Data Portability Violations

DATA PROTECTION—EU

November 29, 2012

Indicating support for the draft data protection regulation, EU Competition Commissioner Joaquín Almunia has threatened antitrust action for businesses that fail to comply with data portability rules provided under the draft. In a speech in Brussels this week, Almunia said consumers must be able to “easily and cheaply” transfer their data from one company to another in order for competition to thrive. “The proposed regulation aims to ensure the ‘right of portability,’” he said, adding that although the commission has not investigated such a case yet, firms’ use of personal data to “keep competition at bay” is possible. Covington & Burling’s Henriette Tielemans told the Daily Dashboard the development is interesting and expected. “Aside from the Google/Doubleclick merger a number of years ago, data protection has not yet been raised in EU competition law cases. But this is clearly about to change. Data gives market power and that power can be abused.” Meanwhile, Christopher Kuner of Wilson Sonsini Goodrich & Rosati said, “At present, competition and data protection are two separate areas in Europe. Commissioner Joaquín Almuni’s speech does not mean that a violation of the right to data portability would necessarily trigger sanctions under EU competition law. But the commissioner seemed to leave the door open to antitrust investigation of anti-competitive practices by data controllers."
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