Canada: Bureau Releases Key Competition Policy Themes For Big Data

On February 19, 2018, the Competition Bureau (the "Bureau") released "Big data and innovation: key themes for competition policy in Canada". This report is a concise reiteration of the analysis in "Big data and Innovation: Implications for competition policy in Canada", the white paper the Bureau released for consultation on September 18, 2017. In short, while big data is precipitating rapid change, the Bureau is of the view that its existing analytical principles and enforcement tools are appropriate for dealing with competition issues regarding big data.

In a prior article, we reported on the highlights of the white paper. This summary report reiterates the same themes, with its focus on (i) mergers and monopolistic practices, (ii) cartels, and (iii) deceptive marketing practices.

  1. Mergers and Monopolistic Practices

    The Bureau recognizes that different types of businesses have become popular in the big data era, such as multi-sided platforms (e.g., Uber, which has riders on one side and drivers on the other) and products that rely on network effects (e.g., Facebook, which becomes more useful as more members join). This fact means that merger reviews for such businesses may not play out in the customary way.

    For example, a business may be found to have market power because it owns valuable data, despite having a low market share. Also, the anticompetitive effects of a merger are typically evaluated by looking to predicted price increases or the lack thereof. That doesn't work for free products, such as Google or Twitter, where non-price effects, such as service levels, take centre stage.

    Nonetheless, these variations to the typical merger review process still fit within the existing merger review framework; the Bureau's Merger Enforcement Guidelines contemplate that market power does not necessarily require high shares and may include non-price effects.

    Interestingly, the Bureau probed the nexus between competition law and privacy law in stating that the way a business deals with privacy matters may affect the perceived quality of its products and, therefore, privacy can be a non-price effect to be evaluated.

  2. Cartels

The Bureau clarified that its usual approach still applies where big data is involved:

  1. Hard-core cartels will be subject to criminal investigation and prosecution.
  2. Conscious parallelism, while it may reduce competitive vigour, is not prohibited by the cartel provisions of the Competition Act (the "Act"). Conscious parallelism occurs where competitors unilaterally mirror each other's practices, but where there is no agreement between them.
  3. Facilitating practices are not in and of themselves prohibited, but maybe evidence of an agreement. Examples include pre-announcing or sharing price lists and, in the big data era, sharing pricing algorithms.

The takeaway is that while big data can lead to novel ways in which to engage in cartel behaviour, the traditional principles apply in assessing whether there has been a breach of the Act. Curiously, the Bureau flagged predictions that in the future, artificially intelligent technologies may collude without human involvement, but declined to provide guidance because such a scenario is too speculative.

  1. Deceptive Marketing Practices

Here, the Bureau continues to focus on privacy, advising that if businesses deceptively collect data from consumers, that could constitute a materially false or misleading representation, contrary to the Act.

On the other hand, the Bureau warns businesses not to use big data to deceive consumers and provides a few examples:

  • Engaging in astroturfing (i.e., fake positive reviews) or native advertising (i.e., disguising an advertisement to make it appear as if it is not advertising, but is rather a news article, for example).
  • Making ordinary selling price claims based on inaccurate data.
  • Creating personalized advertisements that are targeted to "vulnerable" consumers.
  • Making performance claims based on data from third parties that has not been substantiated.

* * *

The overall message is that, at this stage, the Bureau sees no reason to change its policy and enforcement approach in cases involving big data. The Bureau's view is that big data is changing the landscape, but that these changes can be accommodated by the existing framework. Nonetheless, the Bureau will continue to actively monitor big data's impact and we may see a different approach in the future.

To date, the Bureau has taken a cautious approach to enforcement action under the existing framework in cases involving big data. For example, the European Commission fined Google €2.42 billion for abuse of dominance, alleging that Google favoured its own comparison shopping service and demoted rival comparison shopping services in its search results. In contrast, the Bureau discontinued its abuse of dominance investigation into Google in 2016. In so doing, the Bureau gave notice that it will continue to monitor developments in the big data economy.

To view the original article click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Blake, Cassels & Graydon LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Blake, Cassels & Graydon LLP
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions