Similarly, data and data practices are key concerns in competition law discussions surrounding the regulation of digital platforms. Questions such as how data affect market definition and the assessment of market power and competitive effect, when data-based business strategies and practices might constitute anticompetitive conduct, and whether privacy and data protection matters should be incorporated into competition law frameworks are being discussed and debated by competition regulators and legislators all around the world. Germany’s Bundeskartellamt handed down a landmark decision in February 2019, when it found that Facebook had breached German competition laws for its collection, processing, and use of user and device-related data. This is the first decision made by a competition authority that has based a breach of competition law on a violation of privacy and data protection laws. Data and data practices have also been targeted in competition law and related legislative reforms that have been adopted, or are being considered, that provide for ex ante regulation of digital platforms.
The data and data practices of companies are also attracting political and regulatory attention in China. Over the past few years, China has been developing a legal regime to regulate and enable the state to exercise control over data, covering matters relating to cybersecurity, data security, and personal information protection. Moreover, after a long period of relatively lax regulatory oversight and control over internet and technology companies that tended to favor innovation and growth over regulation, China has now shifted to tighten regulatory scrutiny and control over these companies, and the sector more broadly. The suspension of the much-anticipated initial public offering of Ant Group (a subsidiary of Alibaba operating in the financial technology sector) in November 2020 by the Shanghai Stock Exchange less than 48 hours before its securities were scheduled to start trading was the watershed moment that shifted political and regulatory attitudes towards big internet and technology companies operating in China, and the sector more generally. Not only did the Chinese government take a series of regulatory interventions and measures to discipline Alibaba, one of the largest and most high-profile internet conglomerate companies in China, it also began a multi-pronged regulatory and enforcement campaign targeting the internet and technology sector. Chinese regulators have taken actions against specific companies and adopted a raft of new regulations to govern the activities of businesses operating in the digital economy. This campaign has covered a diverse range of areas and concerns, including, inter alia, data, financial regulation, cybersecurity, labor, transportation, online gaming, online education, fan culture, and wealth redistribution. Competition law, in particular, has played a conspicuous role in this campaign.
This article examines whether and how China’s competition laws might apply to regulate the data and data practices of businesses operating in the digital economy. It does so by undertaking a political economy and contextual exploration of China’s data regulatory environment and its relationship and interaction with China’s competition laws. The nature of China’s political economy, as well as of its competition laws, means that a variety of interests, goals, and priorities—which might encompass concerns that other jurisdictions might regard as being beyond the purview of competition law—are considered and balanced in the enforcement of competition law, under the macroeconomic supervision and guidance of the state.
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