Antitrust

9 2 The 'Big Tech' companies have been able to harness the network effects of their platforms to obtain an ever-increasing trove of user data (for example, data generated by a social network). Central to the success of these technology companies has been their ability to commercialize their access to customer data through advertising, generating significant revenue, while allowing them to devise a wide array of more personalized services (in turn further enhancing the network effects of the platform). This arguably provided benefits for both sides: customers benefit from services empirically proven to satisfy their demand, while sellers and advertisers are able to analyze more granular information on customers. However, the platform providers' business model also raised the concern that both the sheer volume and substance of the data generated by their customers utilizing their broad platforms may be difficult for competitors to replicate, thereby potentially creating significant competitive advantages and barriers to entry. At the start of its investigation against Facebook, the President of the German competition authority, the Bundeskartellamt (BKartA), proclaimed that its investigation signified the start of antitrust authorities scrutinizing more closely the "machine room of data-driven platforms." 1 This investigation culminated in a decision in February 2019 that found that Facebook's collection of its users' data from both within and outside of Facebook's platform without "voluntary" user consent infringed German competition law. The BKartA's decision is not yet final 2 — Facebook has appealed against the decision to the Düsseldorf Higher Regional Court. 3 Amazon's dual role as platform provider and seller on its Marketplace platform has also come under scrutiny. The European Commission (EC) is investigating Amazon's use of customer data whilst the BKartA, 4 the Austrian competition authority (the Bundeswettbewerbsbehörde (BwB)) 5 and Italian competition authority (the Autorità Garante della Concorrenza e del Mercato (AGCM)) 6 are all looking at Amazon's allegedly unfair terms and conditions imposed on third-party retailers on its Marketplace. DATA AND PLATFORM TERMS & CONDITIONS AS AN ABUSE OF DOMINANCE The BKartA's decision in February 2019 concluded that Facebook had infringed German competition law by forcing German customers' access to its social network to be conditional on its processing of user data from services within the Facebook platform (e.g., WhatsApp and Instagram) as well as in respect of third-party apps or websites without the effective consent of its users. Although Facebook's user terms and conditions allow it to collect data in this manner, according to the BKartA, the lack of alternatives to Facebook in the German social network market makes it difficult to prove that users have given their free consent to it amassing "such a treasure trove" of their data when users click to accept Facebook's terms and conditions as part of signing up to the social network. Continuing the examination of platforms' exploitation of user data and terms and conditions in the national enforcement sphere; in November 2018, the BKartA initiated proceedings against Amazon UNILATERAL CONDUCT 17 T H E A B I L I T Y T O G E N E R A T E U S E F U L D A T A H A S B E N E F I T S F O R B O T H S I D E S O F T H E P L A T F O R M Developments in the Antitrust Enforcement of Online Platforms' Use of Data

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