In this chapter, we discuss the development of the duty to deal doctrine in antitrust law, its application to the digital economy, and proposals for specific duties to deal, such as data portability and interoperability.Part I outlines the development of the duty to deal doctrine in antitrust law. The development of the doctrine in the United States will be compared to that in the European Union. Popular economic justifications for the doctrine and key cases will be explored. Part II then situates this doctrine within the digital economy, focusing on the importance of getting the contours of the doctrine right in that economy. As we shall see, the law and economics of the duty to deal caution against its application to dynamic, digital markets. This will be illustrated by looking at cases where it has been applied. Part III focuses on two specific categories of duties to deal: data portability and interoperability.

Data portability has become an essential tool for enhancing access to and sharing of data across digital services and platforms. This report explores to what extent data portability can empower users (natural and legal persons) to play a more active role in the re-use of their data across digital services and platforms. It also examines how data portability can help increase interoperability and data flows and thus enhance competition and innovation by reducing switching costs and lock-in effects.

This study provides recommendations on how to make personal data portability more effective. This will truly empower consumers to use the services they want and share their data with whoever they wish and stimulate innovation in Europe. With the entry into force of the GDPR, European citizens gained new rights, notably with data portability. But two years later, there is still little sign of people exercising this right, and of companies offering an easy and convenient service for data portability. While the European Commission is finalising its evaluation of the GDPR and closes its consultation on the European data strategy, the authors, professors Jan Krämer, Pierre Senellart and Alexandre de Streel*, warn that the current legal framework requires clarifications to better empower European citizens in a data-driven society. In this study, they identify barriers to data portability, including the lack of possibilities to import data as well as the lack of common standards and tools to access data as easy as the click of a button. The ability to provide users with a centralised dashboard for monitoring and controlling the flow of their data is also critically missing. “Today, consumers do not widely use data portability for reasons that can and should be overcome. Making data portability more effective is better for competition, for innovation and to empower users,” stress the authors. “There should be no second-guessing on whether to make data portability more effective, the time to act is now.” The current EU framework encourages data portability, but there are legal gaps that the EU should fill. The authors insist on the need for detailed guidance on how data portability can be facilitated and on which data is subject to data portability without violating privacy rights. They advocate that data provided by users when using a service, such as search history (i.e. “observed data”) should clearly be included under the scope of data portability. The authors consider it essential that the obligation to offer standardised Application Programming Interfaces (APIs) be much more widespread to enable consumers to continuously port their data. “We believe that standardised APIs that enable continuous data portability is a prerequisite for encouraging more organisations to import personal data, and for encouraging more consumers to initiate such transfers,” explain the authors. Projects, such as the Data Transfer Project have highlighted that continuous data portability is technically feasible. The authors argue that Personal Management Information Systems (PIMSs) facilitate the complex consent management and offer users a centralised dashboard for monitoring and controlling the flow of their data will have a crucial role to play for the wider adoption of data portability. “It must be as easy as clicking a button for consumers to continuously share data they created with one provider to another provider. This may also require educating and informing users on their rights through information campaigns alongside clear policy measures,” explain the authors. Nevertheless, they stress that PIMSs are not likely to find a sustainable business model, and thus, policy makers should support the emergence of open-source projects by setting common standards for data transfers, consent management, and identity management.

Regulating Digital Industries is the first book to address the tech backlash within a coherent policy framework. It treats competition, privacy and free speech as objectives that must be pursued in a coordinated fashion by a dedicated industry regulator. It contains detailed discussions of current policy controversies involving social media companies, search engines, electronic commerce platforms and mobile apps. It argues for new laws and regulations to promote competition, privacy and free speech in tech and outlines the structure and powers of a regulatory agency able to develop, implement and enforce digital rules for the twenty-first century. Deeply informed by the history of regulation and antitrust in the United States, it brings to bear insights from the breakup of AT&T and the Microsoft case and from broadcasting and financial services regulation to enrich the discussion of remedies to the failure of tech competition, the massive invasion of privacy by digital firms and the information disorder perpetuated by social media platforms. It offers a comprehensive summary of regulatory reform efforts in the United States and abroad and shows how accomplishing the goals of these reform efforts requires the establishment of a single digital agency with jurisdiction to reconcile and balance the complementary and conflicting goals of promoting competition, protecting privacy, and preserving free speech in digital industries. It discusses in detail how a digital regulatory agency would be structured and the powers it would need to have. It confronts head on some of the challenges in establishing a strong digital regulator including the First Amendment roadblock that limits government authority over digital speech and the judicial opposition to the expansion of the administrative state. It is essential reading for policymakers, public interest advocates, industry representatives, academic researchers and the general public interested in a coherent policy approach to today’s tech industry discontents.

All are agreed that the digital economy contributes to a dynamic evolution of markets and competition. Nonetheless, concerns are increasingly raised about the market dominance of a few key players. Because these companies hold the power to drive rivals out of business, regulators have begun to seek scope for competition enforcement in cases where companies claim that withholding data is needed to satisfy customers and cut costs. This book is the first focus on how competition law enforcement tools can be applied to refusals of dominant firms to give access data on online platforms such as search engines, social networks, and e-commerce platforms – commonly referred to as the ‘gatekeepers’ of the Internet. The question arises whether the denial of a dominant firm to grant competitors access to its data could constitute a ‘refusal to deal’ and lead to competition law liability under the so-called ‘essential facilities doctrine', according to which firms need access to shared knowledge in order to be able to compete. A possible duty to share data with rivals also brings to the forefront the interaction of competition law with data protection legislation considering that the required information may include personal data of individuals. Building on the refusal to deal concept, and using a multidisciplinary approach, the analysis covers such issues and topics as the following: – data portability; – interoperability; – data as a competitive advantage or entry barrier in digital markets; – market definition and dominance with respect to data; – disruptive versus sustaining innovation; – role of intellectual property regimes; – economic trade-off in essential facilities cases; – relationship of competition enforcement with data protection law and – data-related competition concerns in merger cases. The author draws on a wealth of relevant material, including EU and US decision-making practice, case law, and policy documents, as well as economic and empirical literature on the link between competition and innovation. The book concludes with a proposed framework for the application of the essential facilities doctrine to potential forms of abuse of dominance relating to data. In addition, it makes suggestions as to how data protection interests can be integrated into competition policy. An invaluable contribution to ongoing academic and policy discussions about how data-related competition concerns should be addressed under competition law, the analysis clearly demonstrates how existing competition tools for market definition and assessment of dominance can be applied to online platforms. It will be of immeasurable value to the many jurists, business persons, and academics concerned with this very timely subject.

This paper discusses the infrastructure and the market for digital platforms in light of the importance of data portability. The study also presents the positive effects to competition when the user is free to port their data from one platform to another competing platform. Furthermore, the paper analyzes the international panorama of Google Adwords case regarding this subject over European Union, United States and Brazil jurisdictions and the perspectives for data portability to be widely implemented in the digital scenario.

The coronavirus pandemic struck unexpectedly, posing unprecedented challenges around the world. At the same time, this crisis also offers a unique opportunity for reflection, research, and insight regarding this and similar global and domestic crises. There is much to be learned from analysing the effects of the crisis. It provides a chance for a fresh scholarly examination of important aspects of legal regulation, policymaking, and more. This volume pursues these questions from a broad range of Law and Economics perspectives and is divided into two parts. The first part examines the immediate impact of and responses to the coronavirus crisis, while the second explores the future possibilities that scholarly analysis of this crisis can offer. As to the immediate impact and responses, questions of compliance with regulations and safety measures, nudging and decision-making with regard to the coronavirus crisis are examined from the perspective of behavioural economics. In addition, the short- and long-term effects of various emergency policy responses on contract law are studied. Current issues and challenges like the regulation of internet platforms, excessive pricing, the right to adequate food, risk and loss allocation, as well as remote learning and examinations, which have been impacted, brought about, complicated or aggravated by the coronavirus crisis, are analysed in depth. Lastly, future possibilities in the areas of data access rights, economic instability and the balance between political-economic interests and social interests, patenting, food labels and open data are illustrated.