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33 Loy. Consumer L. Rev. 1 (2021)

handle is hein.journals/lyclr33 and id is 1 raw text is: ABUSE OF GLOBAL PLATFORM DOMINANCE OR COMPETITION ON THE MERITS?
Anca Chirita*
Abstract
Contrary to mainstream opinion, suggesting that dominant online platforms compete on their
own merits and that their abuse of the large-scale accumulation of data should fall under data
or privacy laws, this article argues that competition law should investigate whether global
platform competition has been established on merit alone and how digital dominance has been
strengthened through the downfall of emerging competition (the exclusionary harm) and the
excessive combination of individuals' data (exploitative harm). To frame the theory of
competitive harm in a global context, this article compares several of the most recent cases
involving digital giants such as Google, Facebook, and Amazon in both pro-active
jurisdictions, as well as in less interventionist jurisdictions. In doing so, the author challenges
the existing categorization of abuse of a dominant position, especially self-preferencing and
the excessive disclosure of data. This article advances the constitutional dimension of
competition law by recognizing the principle of nondiscrimination and equal treatment in
Google Shopping and the principle of autonomous self-determination in Facebook as
embedded in quasi-constitutional EU freedoms of free and fair competition for businesses and
free choice for consumers.
Keywords: competition law; digital dominance; behavioral discrimination; online platforms
Introduction
Decades ago, the immensurable role of competition law in the digital age was unforeseen.
It was unthinkable to predict that algorithms or artificial intelligence (AI) data would have
anything to do with competition between online platforms, or that the latter would shape
modern competition law. Since then, resistance has surfaced with scholars looking for newly
emerging data specialists to take responsibility for and ownership of the problems created by
the platforms' lack of meaningful consent from their users. Increasing popular sentiment means
the very soul of competition law and its well-established principles are at risk of crumbling.
How can competition law walk away from its doctrine of consumer harm instead of
embedding fundamental economic rights such as privacy? Why should competition law be
concerned about data sharing for anticompetitive purposes, third-party advertising, or data
brokering? In reality, and despite entrenched divisions in scholarship, the basic concept of
voluntary consent dates back to the early days of competition law, where weaker contractual
parties were at risk of exploitative behavior by the party in a powerful, and thus dominant,
position.
Safeguarding individual autonomy and freedom of contract was the theoretical standpoint
for the emergence of competition law from the law of contracts. Competition investigates the
abuse of monopoly power against weaker market players. Any imbalance in bargaining power
that did not fit within the monopoly power theory still fell under contract law. Later, the
contractual paternalism toward weaker parties suffered metamorphosis to embrace consumers.
Over time, competition law has also recognized consumer welfare as its foremost economic
goal. With the advent of digital technology giants, consumers have developed into individual
users of global platforms. Unfortunately, these users are unaware of the pitfalls of sharing their

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