A Study of Adjacent Legal Fields to Laws on Privacy and Personal Data Protection

Relation to Competition Law

Abstract

This paper discusses the legal interplay between the protection of privacy, personal data, and competition. From the perspective of competitive law, this paper addresses the following issues: (1) whether competition law should take into account the value of the protection of privacy or personal data; (2) the theoretical basis for introducing the value of privacy as a normative measure into competition law; and (3) the German Federal Cartel Office decision on Facebook, along with the legal issues presented by it.

Regarding these issues, individual consent, choice, and informational self-determination would be the major values of privacy and personal data protection that need to be considered in competition law. Additionally, we need to consider differences regarding the concept and conditions of valid consent between the General Data Protection Regulation (GDPR) in the European Union and the Act on the Protection of Personal Information (APPI) in Japan. While providing personal data from a business to a third party would qualify as legal when the provision is the result of a merger, according to the exception allowed in the APPI, the practice would not be legitimate based on the GDPR. As the GDPR’s consent requirements are strict, violation of an anti-competition act can be easily found when a case of GDPR violation is disputed.

From the viewpoint of personal data protection law, this paper includes an analysis of (4) the issues on data portability and (5) whether administrative sanctions should be incorporated in the APPI. Concerning data portability, role sharing between anti-competition law and personal data protection law is important. First, each law must be separately analyzed. Second, if personal data are included, compliance with the personal data protection law must be ensured; then, the possibility of violating the anti-competition law should be examined. We must look into cases from more analytical viewpoints, as both cooperation and conflict could occur when anti-competition and personal data protection laws are relevant. Finally, incorporating administrative sanctions into the APPI is possible as long as the purpose for administrative sanctions in competition law aligns with personal data protection laws.