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May 2018

Competition authorities talk data privacy, mergers at Antitrust Law meeting

Data privacy and mergers and acquisitions were hot topics of discussion at the April 13 Enforcers Roundtable during the 66th Annual Section of Antitrust Law Spring Meeting in Washington, D.C.

The roundtable, the concluding event of the four-day conference, featured leading competition authorities from the United States, United Kingdom and European Union. Featured speakers were the UK’s Andrea Coscelli, chief executive, Competition & Markets Authority, London; Makan Delrahim, assistant attorney general, U.S. Department of Justice, Antitrust Division in Washington, D.C.; Victor J. Domen, chair, Multistate Antitrust Task Force, National Association of Attorneys General in Nashville, Tenn.; Maureen K. Ohlhausen, acting chair, Federal Trade Commission in Washington, D.C.; and Margrethe Vestager, commissioner for competition of the European Commission in Brussels.

With the Facebook–Cambridge Analytica data scandal on the front pages of the news and the focus of Capitol Hill investigations, data privacy took center stage and set the table for discussion around the European Union’s sweeping new privacy law that will give consumers greater control over the use of their data. The General Data Protection Regulation (GDPR) goes into effect on May 25 and will change what internet companies like Facebook, Google and others can do with customers’ data.

“This is very important. When we asked Europeans, four out of five say ‘we feel completely powerless.’ And that doesn’t really make sense,” said Vestager, who in her term as head of the European competition committee has taken on tech giants Google and Apple in her efforts to regulate commercial activity across the 28 member countries and enforce the EU’s rules designed to keep the markets fair for consumers. “If we want to have the full potential of big data, its promises and its strengths, then we have to make people more comfortable. If you feel powerless, you don’t act. And we need consumers to act in order for competition to work.”

The GDPR is designed to give users greater control, including knowing what information companies have on them. It will also allow consumers to order web services to delete their data or stop distribution of it by third parties. And the new rule will require companies to give users the ability to more easily revoke consent for giving over their personal information.

“These new rules will promote competition,” Vestager said. “This will allow consumers to choose more and it will enable them to move their business from one company to another. I think this is how competition and regulatory should work hand-in-hand.”

Ohlhausen, the FTC’s acting chairman, said the agency will be watching the launch of the GDPR. “At the FTC, we have looked at big data and the benefits that it can bring to consumers and to competition as well. It will be interesting to see how this all plays out,’’ she said.

Mergers and acquisitions were of high interest, especially in light on the ongoing federal trial in Washington over the Justice Department’s lawsuit to block AT&T’s $85 billion merger with Time Warner. The trial has been under way for two weeks but was not in session on Friday, allowing DOJ’s antitrust chief Makan Delrahim to appear on the Enforcer’s panel. He did not, however, speak directly about the trial but talked generally about vertical mergers.

“I dispute the notion that all vertical mergers have been remedied,” Delrahim said. “In some of those remedies there have been abandonments, there have been structural changes. To say remedy is a presumption that the harm caused by that merger has now been remedied. And I would question if that is true in several high-profile recent vertical mergers and whether or not those harms have actually been solved to the benefit of the consumer.

“And then you get to what I think is one of the issues and that is enforceability of some of those given the legal standards. We have a preponderance of the evidence standard to prove an antitrust violation. But until recently, with our new consent decrees, to enforce a violation of that consent decree you must have a clear and convincing standard to prove that to the court for a violation. And I just think that is completely out of whack. That is why we have taken the steps that we have taken to require that as a condition of any consent decree, parties have to agree that future enforcement action has to be on a preponderance of evidence.”

The four-day conference is considered the world’s largest gathering of competition and consumer protection professionals. This year’s event drew more than 3,500 government enforcement officials, private attorneys, in-house corporate counsel, academics, judges, economists and business people from 66 countries to share knowledge about all aspects of competition and consumer protection law.


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