potential data aggregation

Whether excessive data extraction constitutes a valid cause of action under competition law is controversial. Several antitrust agencies including CCI shy away from taking up excessive pricing cases, for reasons such as inability to define what constitutes excessive, presence of countervailing powers, self-correcting attributes of the free-market system, and perils of regulatory intervention; arguments of same fashion may be applicable to excessive data extraction as well. However, excessive data harvest by entities with significant market power may be construed as exploitative behaviour from consumer protection and privacy angles. The German antitrust authority in the case against Facebook explored the anti-competitive and welfare-reducing effects of excessive data extraction by digital platforms. The authority observed that violation of privacy laws can be read into abusive conduct by a dominant entity since the aim of the law was to prevent the dilution of the constitutional right to self-determination in business dealings, where one party is able to unilaterally command the terms. It remains to be seen how the CCI would read the intersection of competition law, data protection law, and our constitutional right to privacy into exploitative data harvest practices.

Privacy has been recognised as a non-price parameter by both European Commission (EC) and the Federal Trade Commission (FTC). The Report, drawing inspiration from global jurisprudence, has clarified that such privacy concerns may be examined under the Indian competition law domain. It observed that privacy is central to consumer welfare, any dilution or violation of the data protection standard by a firm with significant market power can be examined by CCI.
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