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Table of Contents: I. Introduction. – II. The Facebook case. – II.1. Case overview. – II.2. The opinion of the AG. – III. Dominance for GDPR purposes. – III.1. Market power and the GDPR. – III.2. Dominance in AG Ranto’s opinion. – III.3. The definition of “gatekeeper” under the DMA. – IV. Dominance and the validity of consent. – IV.1. Freely given consent under the GDPR. – IV.2. A two-tier approach. – IV.3. The legitimate interests legal basis. – IV.4. Obligations under the DMA. – V. Conclusion.
Abstract: The GDPR is designed to render data protection rights more effective and to address the challenges created by the digital world. In line with the understanding of the right to data protection as data subjects’ right to have control over their data, the GDPR empowers data subjects through individual choice. However, the market power of big tech casts doubts on individuals’ ability to choose. In particular, reliance on consent is problematic when dealing with dominant platforms. If an individual does not have alternatives on the market, can the consent for the processing of personal data be considered as freely given? This issue is at the core of the case against Facebook brought by the German competition authority, now before the CJEU. This Article puts the case into context and discusses what it could mean for the regulation of big tech in the future. The focus is on the novel assertion of Advocate-General Rantos that dominance plays a role in the assessment of the freedom of consent under the GDPR. This statement raises two main issues surrounding the role of market power in the GDPR that this Article seeks to address. Firstly, how should data protection authorities assess dominance? Secondly, what role should dominance play in the assessment of the validity of consent? The Article aims to further the debate around how to ensure the continued future-proofness of the GDPR in the digital market, in light of the market power of tech companies. It proposes to introduce a two-tier approach which reduces the extent to which dominant firms can rely on consent for data processing.
Keywords: GDPR – digital platforms – freely given consent – dominance – competition law – DMA.
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European Papers, Vol. 8, 2023, No 2, pp. 611-629
ISSN 2499-8249 - doi: 10.15166/2499-8249/678
* Assistant Professor, Department of International and European Law, Utrecht University, a.s.damico@uu.nl.
