The Facebook and WhatsApp Merger: Reassessing Market Power and digital Dominance

Abstract

The rising interdependence of data protection and competition law has sparked a global discussion as to what role, if any, anti-trust authorities have in regulating privacy breaches. This research paper considers competition law’s response to privacy violations by looking at two case studies: the German Federal Cartel Office’s (FCO) investigation into Facebook’s conduct and the Competition Commission of India's (CCI) investigation of WhatsApp. Both investigations present the nuanced issues arising when data is collected, integrated, and taken across platforms for commercial gain, which could enhance market power while detrimentally impacting privacy. The paper considers the legal and economic rationale, challenges in the regulatory landscape, and emanating policy challenges raised in both contexts to call for a more holistic view to regulate harm that has simultaneous market failures in regard to competition and privacy. While the privileged status of privacy as a data protection failure is unquestioned, a breach of privacy in competitive law should beckon regulation where competition is distorted or market dominance is achieved. The findings of the research contribute to the ongoing policy debate on the harmonisation of competition and data protection regimes in relation to consumer rights and undertaking equitable digital markets.