17 April 2019
Trends: anti-trust, consumer and privacy regulation increasingly converge



Companies doing business with consumers are increasingly facing enforcement from unexpected agencies, be that a competition authority protecting privacy, or a consumer protection agency acting against unfair anti-competitive practices. When an online consumer faces the unfair or non-transparent use of their data, prices, or other trading conditions, such a breach could easily violate competition, consumer protection and privacy laws. Furthermore, the scope of consumer protection law continues to widen as new EU legislation is put in place to increase competition, such as through PSD2 and the Geo-Blocking Regulation. Added to this is the fact that many EU competition authorities also have a consumer protection role. This allows access to a wider enforcement tool-kit and the convergence of legal principles to tackle certain behaviour. Businesses must become increasingly conversant in this new approach and should consider their behaviour from a number of different enforcement angles.
Competition law and consumer protection law are increasingly, and arguably irreversibly, intertwined. Undistorted competition on price and quality leads to lower prices, better choice and incentives to innovate. Similarly, consumer protection law guarantees that the choice created by competition law, is a real choice. For example, once a consumer has found the lowest price as the result of price competition, consumer protection law requires that price to be correct, without unexpected surcharges. Failure to uphold this principle of transparency has led to considerable enforcement, for example:
- by the Italian competition authority in relation to low-cost airline companies' surcharges for cabin baggage;
- by the Dutch competition authority for hidden surcharges for tool rental; and
- by the UK competition authority on unavoidable surcharges instigated by car-hire companies.
- the Italian Competition Authority fined Facebook EUR 10 million for using its subscribers’ data for commercial purposes, which it considered an unfair commercial practice under consumer protection law.
- the German competition authority held that Facebook abused its dominant position by collecting data from its own users and visitors of third-party websites which used Facebook interfaces without the voluntary consent of users.
- In the UK, Facebook was fined by the Data Protection Authority for the unfair processing of personal data since Cambridge Analytics used the information without proper consent of Facebook's subscribers.