The Power of Perspectives

The Canadian Bar Association

Kim Covert

Competition Bureau initiates discussion on Big Data

December 18 2017 18 December 2017

 

Google. Facebook. Twitter. The Internet itself. Twenty years ago most of these things were barely more than glints in their creators’ eyes (the internet was still the information superhighway 20 years ago), now they’re ubiquitous resources that most people can’t live without.

And while access to basic services is nominally free, they all come with a price – users are both clients and product. For every online action someone, somewhere, has made a record, and more often than not sold at least part of that information on as part of a comprehensive business model. Bring together information of high volume, velocity and variety, use technology and analysis to transform its value, and you’ve got Big Data.

In September, the Competition Bureau published a discussion paper, inviting comment on the interaction of competition policy in Canada with big data and innovation – in mergers and monopolistic practices, in criminal cartels, and in deceptive marketing practices.

The CBA Competition Law Section, in its response to the discussion paper, noted that it supports the Bureau’s statements about the need to preserve incentives to innovate and resist the urge to regulate outcomes.

“We also agree with the overarching premise that it is neither necessary nor appropriate to apply different rules to big data simply because it involves data, as opposed to a physical product. Indeed, many if not all of the competition considerations relevant to data are not new and do not require a departure from well-established competition principles.”

That said, the Section says some areas need to be clarified, for example:

  • The paper says in some cases it may be appropriate to “rely on alternative methods to assess market definition, or forgo market definition as an initial step and focus on direct evidence of competitive effects.” The Section sees this as a departure from well-accepted principle, and says guidance from the Bureau on when this might be appropriate would be helpful.
  • The discussion paper raises the potential for data to “represent a barrier because of network effects” but does not provide any real discussion or examples where this could arise.
  • The discussion of the criteria or screens the Bureau believes are useful to evaluate a business justification and how it will approach this issue should be expanded.
  • The discussion of intellectual property is limited and would benefit from a more in-depth analysis.
  • Because the distinctions between illegal agreements, conscious parallelism and facilitating practices are “notoriously difficult to navigate,” more discussion is needed as to how and when the Bureau may view conduct involving big data as a facilitating practice is needed.

“The CBA Section supports the Bureau’s general approach that the potential competitive effects in cases involving big data can, in most cases, be assessed using traditional analytical tools and addressed using traditional remedies,” the Section says. “That being said, the discussion paper raises several areas where the Bureau has identified possible challenges when applying traditional methods to cases involving big data … (A)dditional discussion of certain challenges would give useful direction to all stakeholders without impairing the enforcement approach the Bureau may choose in a particular case.”

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