Logical Basis and Pathways for Antitrust Regulation of Privacy in Data-driven Merger and Acquisition

In the era of digital economy, data resources are increasingly becoming key elements for platforms to form competitive advantages. Therefore, most of the mergers of platform companies are aimed at acquiring data resources and obtaining data advantages. The concentration of data-driven operators is becoming more and more common, but there are limitations to the application of the traditional price-oriented theory of antitrust law. Accordingly, the non-price factors in the concentration behavior are gaining more and more attention from educational circles. Currently, under the free business model, data resources are logically linked to competitive behavior. However, restrictive competitive behaviors in data-driven mergers and acquisitions threaten consumers’ privacy security, such as companies adjusting their privacy policies resulting in the reduction of the level of privacy protection, and enterprises building data barriers to discriminate against users, and so on. Thus, the regulation of privacy issues by antitrust law is not a subversion of antitrust law, but rather a more comprehensive protection of consumer rights. In other words, it is reasonable and necessary to consider the level of privacy protection as a new type of non-price competitive factor for antitrust review. The judicial decisions of the EU and the official attitudes of the US and Japan are of interest in the determination of privacy effects under the antitrust framework. The problems faced by modern society are becoming increasingly complex, and while special laws are developed through a refined division of labor, department laws also need to work together to maintain market order and protect the rights and interests of consumers. In the face of the intersection of privacy and concentration control of operators, China’s newly revised anti-monopoly law, which came into force on August 1, 2022, does not provide a clear response. Therefore, more attention should be paid to this in future legislative and judicial work. In the legislation, we should innovate the connotation of consumer welfare, clarify the prerequisites for reviewing privacy, and establish scientific articulation with other laws. In practice, antitrust enforcement agencies need to establish benchmarks for privacy assessment, introduce analytical paradigms such as SSNDPP, and design supporting regulatory programs. It can be seen that the integration of antitrust law and privacy protection is not a simple institutional splicing, but a modern intersection of multiple layers of protection mechanisms in the digital economy.