EU Data Strategy

Rethinking the Role of Ethics in Shaping the New Rules of Competition Law in the Era of Data Governance

The paper ”EU Data Strategy: Rethinking the Role of Ethics in Shaping the New Rules of Competition Law in the Era of Data Governance” (Montero Santos, L., Bey, N.E.H.) will be presented at the 11th FSR Annual Conference “From Data Spaces to Data Governance” (9-10 June, 2022).

Abstract:

The evolution of artificial intelligence tools, the use of big data, the flourishing of different digital platforms draw non-intuitive and unverifiable inferences and predictions about users’ behaviour and preferences. Often, the different data used has been the source of antitrust problems, especially in network industries. It has not been ruled out in the literature that different data collections, data sharing and the use of artificial intelligence may give rise to a new category of cartels or abusive practices in that they create new possibilities for particularly invasive decision-making process. The various texts proposed by the Commission are supposed to rationalise the use of data and therefore limit the impetus towards anticompetitive practice and so to speak, stain it with ethics. Thus, network industries may represent a specific context for the study of ethics, yet very little research has been conducted on the subject.

Indeed, the Data Strategy Communication of the Commission mentions a report published in May 2019. It recommended, inter alia, significant changes in the application of EU antitrust law regarding digital platforms, as well as data sharing and collecting and the use of big data. The Communication states that the Commission intends to provide precise guidance on the compliance of data processing agreements with EU competition law through an update of the guidelines on horizontal agreements. Furthermore, another competition law axis will be examined by the text: merger control. Yet, it is stated that the Commission will examine the effects on competition of large-scale data collection and the usefulness of data access or data sharing remedies proposed in some merger cases.

Research Design and Expected Results:

In this study, we present ethics as an area related to data governance in network industries. Our aim is to draw the attention of researchers to ethics as a normal extension of exclusively legal considerations applied to date to the network industries and to propose avenues for its future study with the evolution of the tools made available to the various businesses and companies

On the basis of the existing literature, this contribution will first analyse the positions taken on the definition of ethics and ethical behaviour in competition law and in particular in data governance and artificial intelligence issues. Secondly, ot will largely discuss the importance of ethical behaviour for the respect of competition law in network industries.

This article argues that a new approach to data governance is needed to help bridge the accountability gap related to artificial intelligence and big data, particularly in light of the European Commission’s policy. This approach will link competition law to ethical issues of data governance through (1) the verification of the content of compliance programmes, (2) the management of data in merger control and (3) the relationship between state aids to companies (related to digital evolution) and the limitation of distortions of competition through data sharing requirements for beneficiaries.

This paper will conclude by providing a new approach to the design of competition law rules in line with data and digital issues which, by taking as its starting point a prism as universal as ethics, could lead to a body of rules dedicated to the conference’s core issue.

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