Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Ohlhausen advises against clouding competition analysis with privacy concerns, (Apr 16, 2015)

By Jeffrey May, J.D.

FTC Commissioner Maureen K. Ohlhausen cautioned against injecting consumer privacy considerations into antitrust analysis in a speech delivered yesterday at the American Bar Association Section of Antitrust Law Spring Meeting in Washington, D.C. Speaking on a panel, entitled “Competition Law Issues Around Big Data,” the commissioner suggested that consumer protection laws provide a more direct and effective method of protecting consumer privacy when considering conduct and transactions involving big data.

Ohlhausen noted that the intersection of privacy and competition issues has already been addressed by the FTC. The commissioner pointed to the agency's 2007 review of Google's acquisition of DoubleClick—two businesses involved in online advertising. Despite concerns from privacy groups that the combination of the firms' data sets threatened privacy, a majority of commissioners concluded that privacy should not be a factor in its analysis of that merger. In a statement, the commissioners said that “regulating the privacy requirements of just one company could pose a serious detriment to competition in this vast and rapidly evolving industry.”

When deciding whether to apply antitrust or consumer protection laws, the type of harm should guide the analysis, Ohlhausen explained. If there is a reduction in economic efficiency, then antitrust analysis is appropriate. In addition, the scope of the harm should be considered. While antitrust is focused on macro issues, consumer protection can focus on privacy policies and the collection and use of consumer data. The effectiveness of the remedies available under the law also should be taken into account, she said.

Ohlhausen suggested that competition law provides a convoluted approach to privacy. She noted that the FTC counsels antitrust regimes around the globe to avoid considering non-antitrust factors, such as privacy, in its competition analysis.

The Commissioner offered some practical advice to companies contemplating changes to their privacy policies that might be objectionable to consumers. While every consumer is not going to read every privacy policy, word gets out when policy changes raise privacy concerns, she noted. “Bad information practices get identified very quickly, and it rebounds poorly on the company,” Ohlhausen said.

While she likes to think of “competition as first line of defense in consumer protection,” Ohlhausen remains concerned about inserting privacy values into competition analysis when consumer protection tools are better suited to handle the issues.

News: Antitrust ConsumerProtection Privacy FederalTradeCommissionNews