This report analyses the processes that turn data into economic value for online search, e-commerce and media platforms. It concludes that forcing data sharing through policy intervention would not prevent dominant incumbents to continue to benefit economically from greater access to data over new entrants. Instead, policy makers should focus on enabling niche entry, niche growth and a level playing field for competitors in new and emerging markets. Data play a central role in the business models that shape competition and innovation in digital markets. As dominant providers of online services collect ever more user data they generate data-driven network effects. They can then improve their services faster, and venture faster into related markets than competitors with less data, thereby raising entry barriers for innovative start-ups. The authors, Sally Broughton Micova (CERRE & University of East Anglia), Jan Krämer (CERRE & University of Passau) and Daniel Schnurr (University of Passau), have analysed processes that transform data into economic value for online search, e-commerce and media platforms. They find that in each case, more data, especially on user behaviour, gradually improves the quality of the service, thereby generating high economic benefits for the firm. The authors find that data-driven network effects can nevertheless be a source of efficiency which can ultimately benefit consumers. Even if some data is shared through policy intervention, dominant incumbents will continue to benefit economically and competitively from greater access to data over new entrants. “We conclude that it is neither realistic nor desirable to try to break data-driven network effects through policy intervention. Instead, we would strongly encourage policy makers to focus on enabling niche entry and niche growth. To do so, they should facilitate the sharing of behavioural user data gathered by the dominant firm with other firms.” The authors provide policy recommendations for data access remedies to safeguard competition, innovation and the openness of the digital ecosystem: 1. Remedies that achieve a more level playing field in the digital economy by breaking the data-driven network effects of data-rich incumbents should be entertained as a last resort and only under specific conditions. 2. Policy makers should foster data sharing on two levels to strike a balance between consumers’ privacy, competition and innovation. They should require the sharing of aggregated and anonymised raw user data in bulk, after a careful review and on a case-by-case basis. They should also facilitate the sharing of detailed raw user data through improved data portability, based on individual users’ consent. Bulk sharing of raw user data should be limited to data that was collected as a by-product of the incumbent’s dominant user-facing service, such as search logs, in order to maintain incentives for innovation and data collection. The main challenge will be to balance privacy concerns with maintaining enough detailed data to ensure it is of value to third-parties. 3. Dominant firms should also be obliged to allow consumers to port their raw data to another provider continuously and in real time. Privacy concerns can then be overcome and the shared user profiles can be more detailed than under bulk sharing. In concert with bulk-sharing, data portability can be a valuable source for attaining both detailed and representative data sets.

As the European Commission is preparing its Data Act, this new CERRE report provides concrete recommendations for effective data sharing governance, more specifically when a party has significant incentives not to share data. The forthcoming data act should provide better incentives to stimulate two forms of data sharing: individual users’ data sharing and bulk data sharing between firms. Data sharing is seen by many as an effective means to safeguard competition in digital markets, allowing smaller players to get access to precious data. The authors of the CERRE report, Richard Feasey and Alexandre de Streel, have analysed current EU rules imposing data sharing and conclude these do not provide the comprehensive governance framework needed for data sharing to effectively take place. “Given the incentives a gatekeeper platform may have not to share data, and the potential for this platform to leverage into other markets, we recommend imposing an obligation to share data”, explain Richard Feasey. “The most important and difficult task for regulators lies in determining the type and scope of data that is to be shared and which organisations should be obliged to share it. We conclude that better incentives and governance are needed to stimulate two forms of data sharing in the EU: data about individuals and bulk data between firms.” Regulating recipients as well as donors Regulation for data sharing should not be viewed as being limited to the oversight of a small number of large platforms that might be obliged to share data. It also requires strict oversight of potentially a very large number of smaller firms that might seek access to such data. Regulators will need to establish an effective and comprehensive system of regulation of both donors and recipients of data to guard against misuse and to ensure trust on all sides. Sharing individual users data Over time, the sharing or porting of data about individual users’ data could accumulate and be used for other purposes. For this reason, the authors recommend that obligations to share data about individual users should be quite extensive and apply to digital platforms which may be described as meeting the ‘gatekeeper minus’ threshold. The report encourages regulators to require the sharing of individual user data without any payment. If high transaction costs and uncertain users’ benefits prevent the effectiveness of this approach, policymakers should consider more radical approaches, such as allowing the use of an ‘opt-out’ option (rather than, the current ‘opt-in’) for the sharing of personal data in order to ensure fair competition in digital markets. The European Commission should consider provisions in the forthcoming Data Act to enable the use of ‘opt-out’ arrangements for the sharing of personal data to preserve market contestability under certain prescribed conditions. Although this may represent some loss of consumer sovereignty over their data, such a trade-off may need to be made if data sharing arrangements are to achieve their aim of ensuring contestability in digital markets. Bulk sharing of user data The competitive impact of the bulk transfer of aggregate user data could be significant since the volume of data to be shared is likely to be very substantial and may represent a significant proportion of the donor platform’s data assets. Since obtaining individual consent from every user would not be feasible in these circumstances, regulators and policymakers should consider other mechanisms to enable the bulk sharing of non-anonymised user data. Alternatively, regulators should consider requiring the platform that controls the data to allow third party access to the full data set so that third parties may train algorithms or otherwise derive the same sorts of insights from the data that are available to the incumbent. Recipients of aggregated data should be required to pay for the data, with the payment varying according to the volume and value of the data being shared (and not simply the costs of implementing the data sharing arrangements or storing the data). The primary concern here is to preserve incentives for both parties in the sharing arrangement to innovate and invest in existing or new digital services to acquire additional data for themselves. The Commission should undertake a study to consider how regulators would establish wholesale prices for data that was to be shared. The challenge ahead European policymakers should consider legislative changes with the Data Act to enable the sharing of personal data on an ‘opt-out’ basis under certain narrowly prescribed circumstances and to ensure contestability in digital markets. Finally, data sharing remedies that the report considers arise from the assumption that digital platforms will continue to derive significant market power from their centralised control of big data sets. Regulators and policymakers should also keep an eye on new technologies which might enable a much greater degree of decentralisation and wider distribution of data, thereby removing the very sources of market power which this report has sought to address. This report follows another CERRE research analysing the processes that turn data into economic value for online search, e-commerce and media platforms.

Across the world, regulators and policy makers are grappling with how to establish a competitive, safe and fair online environment that also safeguards users’ fundamental rights as citizens. Ahead of the European Commission’s Digital Markets Act (DMA), this book “Digital markets and online platforms: new perspectives on regulation and competition law“, presents CERRE’s latest contribution to the debate with concrete policy recommendations. Together, the policy recommendations in this book present a roadmap that should be pursued for EU policy makers to safeguard competition and innovation in digital platform markets. They can be organised into three key areas for action: (i) More effective enforcement, (ii) increased transparency and switching easiness, and (iii) providing access to key innovation capabilities. “The need to safeguard fair and vibrant competition, which is also seen as an important driving factor for innovation, is nothing new for policy makers. However, the characteristics and complexities of digital markets have challenged some of the traditional approaches.” – Jan Krämer, editor of the book and CERRE Academic Co-Director The book’s recommendations highlight that platform transparency and associated data collection by authorities, as well as data sharing by platforms (initiated through consumers or authorities), are the two most important overarching policy measures for platform markets in the near future. They facilitate enforcement, consumer choice, and innovation capabilities in the digital economy. The contents of this book were presented and debated during a CERRE live debate with guest speakers Anne Yvrande-Billon (Arcep’s Director of Economic, Market and Digital Affairs), MEP Stéphanie Yon-Courtin (Vice-President of the European Parliament’s Committee on Economic and Monetary Affairs) and Javier Espinoza (Financial Times’ EU Correspondent covering competition and digital policy).

All are agreed that the digital economy contributes to a dynamic evolution of markets and competition. Nonetheless, concerns are increasingly raised about the market dominance of a few key players. Because these companies hold the power to drive rivals out of business, regulators have begun to seek scope for competition enforcement in cases where companies claim that withholding data is needed to satisfy customers and cut costs. This book is the first focus on how competition law enforcement tools can be applied to refusals of dominant firms to give access data on online platforms such as search engines, social networks, and e-commerce platforms – commonly referred to as the ‘gatekeepers’ of the Internet. The question arises whether the denial of a dominant firm to grant competitors access to its data could constitute a ‘refusal to deal’ and lead to competition law liability under the so-called ‘essential facilities doctrine', according to which firms need access to shared knowledge in order to be able to compete. A possible duty to share data with rivals also brings to the forefront the interaction of competition law with data protection legislation considering that the required information may include personal data of individuals. Building on the refusal to deal concept, and using a multidisciplinary approach, the analysis covers such issues and topics as the following: – data portability; – interoperability; – data as a competitive advantage or entry barrier in digital markets; – market definition and dominance with respect to data; – disruptive versus sustaining innovation; – role of intellectual property regimes; – economic trade-off in essential facilities cases; – relationship of competition enforcement with data protection law and – data-related competition concerns in merger cases. The author draws on a wealth of relevant material, including EU and US decision-making practice, case law, and policy documents, as well as economic and empirical literature on the link between competition and innovation. The book concludes with a proposed framework for the application of the essential facilities doctrine to potential forms of abuse of dominance relating to data. In addition, it makes suggestions as to how data protection interests can be integrated into competition policy. An invaluable contribution to ongoing academic and policy discussions about how data-related competition concerns should be addressed under competition law, the analysis clearly demonstrates how existing competition tools for market definition and assessment of dominance can be applied to online platforms. It will be of immeasurable value to the many jurists, business persons, and academics concerned with this very timely subject.

The right to privacy is a fundamental right. Along with the related right to personal data protection, it has come to take a central place in contemporary employment relations and shows significant relevance for the future of work. This thoroughly researched volume, which offers insightful essays by leading European academics and policymakers in labour and employment law, is the first to present a thoroughly up-to-date Europe-wide survey and analysis of the intensive and growing interaction of workplace relations systems with developments in privacy law. With abundant reference to the EU’s General Data Protection Regulation, the case law of the European Court of Human Rights, and the work of the International Labour Organisation, the book proceeds as a series of country chapters, each by a recognised expert in a specific jurisdiction. Legal comparison is based on a questionnaire circulated to the contributors in advance. Each country chapter addresses the national legal weight of such issues and topics as the following: interaction of privacy and data protection law; legitimacy, purpose limitation, and data minimisation; transparency; role of consent; artificial intelligence and automated decision-making; health-related data, including biometrics and psychological testing; monitoring and surveillance; and use of social media. A detailed introductory overview begins the volume. The research for this book is based on a dynamic methodology, founded in scientific desk research and expert networking. Recognising that the need for further guidance for privacy at work has been demonstrated by various European and international bodies, this book delivers a signal contribution to the field for social partners, practitioners, policymakers, scholars, and all other stakeholders working at the crossroads of privacy, data protection, and labour law.

This study provides recommendations on how to make personal data portability more effective. This will truly empower consumers to use the services they want and share their data with whoever they wish and stimulate innovation in Europe. With the entry into force of the GDPR, European citizens gained new rights, notably with data portability. But two years later, there is still little sign of people exercising this right, and of companies offering an easy and convenient service for data portability. While the European Commission is finalising its evaluation of the GDPR and closes its consultation on the European data strategy, the authors, professors Jan Krämer, Pierre Senellart and Alexandre de Streel*, warn that the current legal framework requires clarifications to better empower European citizens in a data-driven society. In this study, they identify barriers to data portability, including the lack of possibilities to import data as well as the lack of common standards and tools to access data as easy as the click of a button. The ability to provide users with a centralised dashboard for monitoring and controlling the flow of their data is also critically missing. “Today, consumers do not widely use data portability for reasons that can and should be overcome. Making data portability more effective is better for competition, for innovation and to empower users,” stress the authors. “There should be no second-guessing on whether to make data portability more effective, the time to act is now.” The current EU framework encourages data portability, but there are legal gaps that the EU should fill. The authors insist on the need for detailed guidance on how data portability can be facilitated and on which data is subject to data portability without violating privacy rights. They advocate that data provided by users when using a service, such as search history (i.e. “observed data”) should clearly be included under the scope of data portability. The authors consider it essential that the obligation to offer standardised Application Programming Interfaces (APIs) be much more widespread to enable consumers to continuously port their data. “We believe that standardised APIs that enable continuous data portability is a prerequisite for encouraging more organisations to import personal data, and for encouraging more consumers to initiate such transfers,” explain the authors. Projects, such as the Data Transfer Project have highlighted that continuous data portability is technically feasible. The authors argue that Personal Management Information Systems (PIMSs) facilitate the complex consent management and offer users a centralised dashboard for monitoring and controlling the flow of their data will have a crucial role to play for the wider adoption of data portability. “It must be as easy as clicking a button for consumers to continuously share data they created with one provider to another provider. This may also require educating and informing users on their rights through information campaigns alongside clear policy measures,” explain the authors. Nevertheless, they stress that PIMSs are not likely to find a sustainable business model, and thus, policy makers should support the emergence of open-source projects by setting common standards for data transfers, consent management, and identity management.

With the rise of digital platforms and the natural tendency of markets involving platforms to become concentrated, competition authorities and courts are more frequently in a position to investigate and decide merger and abuse cases that involve platforms. This report provides guidance on how to define markets and on how to assess market power when dealing with two-sided platforms. DEFINITION Competition authorities and courts are well advised to uniformly use a multi-markets approach when defining markets in the context of two-sided platforms. The multi-markets approach is the more flexible instrument compared to the competing single-market approach that defines a single market for both sides of a platform, as the former naturally accounts for different substitution possibilities by the user groups on the two sides of the platform. While one might think of conditions under which a single-market approach could be feasible, the necessary conditions are so severe that it would only be applicable under rare circumstances. To fully appreciate business activities in platform markets from a competition law point of view, and to do justice to competition law’s purpose, which is to protect consumer welfare, the legal concept of a “market” should not be interpreted as requiring a price to be paid by one party to the other. It is not sufficient to consider the activities on the “unpaid side” of the platform only indirectly by way of including them in the competition law analysis of the “paid side” of the platform. Such an approach would exclude certain activities and ensuing positive or negative effects on consumer welfare altogether from the radar of competition law. Instead, competition practice should recognize straightforwardly that there can be “markets” for products offered free of charge, i.e. without monetary consideration by those who receive the product. ASSESSMENT The application of competition law often requires an assessment of market power. Using market shares as indicators of market power, in addition to all the difficulties in standard markets, raises further issues for two-sided platforms. When calculating revenue shares, the only reasonable option is to use the sum of revenues on all sides of the platform. Then, such shares should not be interpreted as market shares as they are aggregated over two interdependent markets. Large revenue shares appear to be a meaningful indicator of market power if all undertakings under consideration serve the same sides. However, they are often not meaningful if undertakings active in the relevant markets follow different business models. Given potentially strong cross-group external effects, market shares are less apt in the context of two-sided platforms to indicate market power (or the lack of it). Barriers to entry are at the core of persistent market power and, thus, the entrenchment of incumbent platforms. They deserve careful examination by competition authorities. Barriers to entry may arise due to users’ coordination failure in the presence of network effect. On two-sided platforms, users on both sides of the market have to coordinate their expectations. Barriers to entry are more likely to be present if an industry does not attract new users and if it does not undergo major technological change. Switching costs and network effects may go hand in hand: consumer switching costs sometimes depend on the number of platform users and, in this case, barriers to entry from consumer switching costs increase with platform size. Since market power is related to barriers to entry, the absence of entry attempts may be seen as an indication of market power. However, entry threats may arise from firms offering quite different services, as long as they provide a new home for users’ attention and needs.

The book addresses the most recent challenges faced by the postal and delivery sector. This book includes original essays by prominent researchers and practitioners in the field of postal and delivery economics, originally presented at the 28th Conference on Postal and Delivery Economics held online, December 1-5, 2020. Chapters discuss topics such as the sustainability of the universal service obligations (USO) quality of service, last mile solutions, competition in liberalized markets, data protection, environmental sustainability, and the impact of the COVID-19 pandemic. This book will be a useful tool not only for graduate students and professors interested in postal and regulatory economics, but also for postal administrations, consulting firms, and federal government departments.

Through three case studies, this book investigates whether digital industries are naturally monopolistic and evaluates policy approaches to market power.

A trio of experts on high-tech business strategy and innovation reveal the principles that have made platform businesses the most valuable firms in the world and the first trillion-dollar companies. Managers and entrepreneurs in the digital era must learn to live in two worlds—the conventional economy and the platform economy. Platforms that operate for business purposes usually exist at the level of an industry or ecosystem, bringing together individuals and organizations so they can innovate and interact in ways not otherwise possible. Platforms create economic value far beyond what we see in conventional companies. The Business of Platforms is an invaluable, in-depth look at platform strategy and digital innovation. Cusumano, Gawer, and Yoffie address how a small number of companies have come to exert extraordinary influence over every dimension of our personal, professional, and political lives. They explain how these new entities differ from the powerful corporations of the past. They also question whether there are limits to the market dominance and expansion of these digital juggernauts. Finally, they discuss the role governments should play in rethinking data privacy laws, antitrust, and other regulations that could reign in abuses from these powerful businesses. Their goal is to help managers and entrepreneurs build platform businesses that can stand the test of time and win their share of battles with both digital and conventional competitors. As experts who have studied and worked with these firms for some thirty years, this book is the most authoritative and timely investigation yet of the powerful economic and technological forces that make platform businesses, from Amazon and Apple to Microsoft, Facebook, and Google—all dominant players in shaping the global economy, the future of work, and the political world we now face.