Privacy Harms in Platform Mergers: Lessons from Brazil
Privacy Harms in Platform Mergers: Lessons from Brazil

Introduction

In recent years, several antitrust authorities have expressed more significant concerns about the degradation of privacy in digital markets. 2 Influential commentators argue that antitrust and privacy policies are now converging in their goals of protecting individuals against the asymmetry of economic powers. 3 More conservatively, it can be stated at least that two regimes can collide at their margins, as observed between antitrust and intellectual property or consumer protection legislation. 4

It is challenging to draw theories of harm from merger analyzes related to breaches of data protection legislation. At first glance, there is a discrepancy in the nature of the damage caused by platforms in each legal regime. While data protection laws are concerned with risks to privacy from the perspective of individual rights, under a more economic approach, antitrust is concerned with the impacts on consumer surplus or total surplus. 5 However, when approaching mergers of dominant platforms, two instances of intervention can overlap in unexpected ways.

This brief contribution explores how the Brazilian competition authority (“CADE”) handles complaints of infringements of the General Personal Data Protection Law (Law 13,709/2018) in platform merger analyses. We affirm that, in recent cases, CADE treated privacy as a parameter of quality of competition in both the digital and non-digital markets. From this perspective, a possible unilateral effect of the merger could be to reduce competitive pressure for more protective terms and conditions for users on the platform.

CADE's approach has produced decisions that, similar to the European Commission's decisions, eliminate concerns related to antitrust merger control data protection law violations. Moving towards more interventionist results would require overcoming the theoretical and practical obstacles explored in this article. Facing these obstacles depends on normative choices that, in the end, redefine the very limits of antitrust policy.