The use of “big data” throughout all levels of the economy has led authorities in both Europe and the United States to begin examining how such data may be used as a commodity and, therefore, how it might regulated.
However, authorities on either side of the Atlantic seem to be offering different approaches on the matter; those in Europe are suggesting that big data should be subject to EU abuse of dominance law, whereas U.S. authorities are resisting the notion of big data as an “essential facility” and are suggesting it be considered as an asset within existing merger review processes.
I co-authored an article on this topic titled “The Era of ‘Big Data’ and EU/U.S. Divergence for Refusals to Deal” for the spring edition of Antitrust Magazine, written in collaboration with Baker Botts partner Paul Lugard.
The article provides a close examination of the essential facilities doctrine in both the U.S. and Europe, how this doctrine operates in antitrust and abuse of dominance laws, and the considerable differences between the U.S. and EU laws. We also consider the many difficulties of governing big data under antitrust laws and say authorities will likely continue wrestling with the increasing complexities of big data.