Legal efforts to tackle excessive personal information collection by social media giants could transcend international boundaries if nations moved away from a focus on assessing competition using the value of data, a new study says.
Basing laws around assessments of whether dominant platforms are imposing conditions that undermine self-determination about people's information will be more effective, researchers have said.
Recent new legal approaches in India and the European Union create opportunities for a global analytical framework that respects national law and enables more effective global regulation. Both new approaches acknowledge that platforms like WhatsApp perform functions that transcend traditional private commercial relationships.
They are based on different legal foundations, but both recognise that dominant platforms' data collection practices can constitute abusive exploitation of market power.
The Indian approach has been to integrate competition law with constitutional protections, particularly the right to privacy under Article 21 of the Indian Constitution.
The European approach integrates competition law with data protection principles enshrined in the General Data Protection Regulation (GDPR).
WhatsApp has been compelled to rewrite its European privacy policy, adding substantial detail about data collection, usage, storage, deletion practices, and cross-border data sharing mechanisms. The study says this illustrates that financial penalties coupled with mandated policy revisions can effectively bring even the largest tech companies into compliance with European data protection standards, providing a template for future regulatory interventions.
The study, published in the Yearbook of Antitrust and Regulatory Studies, is by Anush Ganesh, from the University of Exeter, and Krusha Bhatt, from Jindal Global Law School.
Dr Ganesh said: "The legal approaches in India at the EU suggests the emergence of a common understanding of platform dominance and its relationship to data practices that transcends jurisdictional boundaries especially pertaining to the users' rights to informational privacy.
"The Indian approach uses the concept of 'quasi-public entities,' while the European approach uses the concept of 'gatekeepers' in the Digital Markets Act (DMA). Both recognize the importance of informational self-determination- whether framed as a constitutional right (India) or as a data protection principle (EU).
"Both the Indian and European approaches recognize the limitations of traditional price-based competition analysis when addressing data practices.
"Both approaches assess the fairness of trading conditions imposed by dominant platforms, avoiding the challenges of quantifying data's value while focusing on the conditions under which data is collected."
Researchers suggest a four-part test which integrates constitutional values and competition principles: is the data collection necessary for the core functionality of the service; has the platform provided clear, specific, and comprehensible information about data collection; does the platform offer meaningful choice regarding data collection and is the value extracted through data collection proportionate to the value provided to users?
Implementation would require domestic coordination mechanisms between competition authorities, data protection agencies, and courts, along with international cooperation arrangements that enable information sharing while respecting constitutional limits. Technical capacity building must provide these institutions with expertise necessary to evaluate complex algorithmic systems and their constitutional implications.
