The Digital Markets Act (the “DMA”) joins the dots between competition law and data protection law and actively targets data-driven platforms. It is also a comprehensive regulation to take note of, with familiar GDPR-style fines tied to turnover.
The Digital Markets Act is the EU’s latest move to try and regulate big technology platforms. The Digital Markets Act joins the dots between competition law and data protection law and actively targets large data-driven platforms. The Digital Markets Act is separate to merger control regulation and the GDPR. The Digital Markets Act is set to regulate the sweet spot, or regulatory shadow in which online platforms currently reside and which “traditional” competition law is unable to tackle.
The Digital Markets Act Digital Markets Act will complement (on a without-prejudice basis) other pieces of EU legislation and, from a data perspective, the GDPR in particular. The Digital Markets Act refers to and uses GDPR definitions in providing for new data protection rules which are in addition to those in the GDPR. The Digital Markets Act does not actually amend the GDPR, however. The Digital Markets Act is also a comprehensive regulation to take note of, with familiar GDPR-style fines tied to turnover.
The Digital Markets Act only catches large platforms, which the Digital Markets Act terms Gatekeepers. To be a “Gatekeeper”, a platform must have a significant impact on the internal market, provide an important gateway for platforms, and enjoy an entrenched and durable position.
Market-share figures are used to bring platforms within scope of the above criteria, and this is likely to form the basis of much of the EU Commission’s jurisdiction. Importantly, Article 3(8) of the Digital Markets Act will provide flexibility to the EU Commission to disregard empirical figures and rely on a more “look and feel” approach to determining whether a platform comes within the criteria above.
A crucial challenge in a competition strategy for data-driven platforms where market-share figures are not met (and compulsory notification is not mandated) will be to remain out of the regulator’s spotlight. Data (in the general sense) is clearly included in Article 3(8) as one of the criteria which the EU Commission may use to bring an undertaking within the scope of the Digital Markets Act. Whether an organisation has data-driven advantages and whether it collects personal and non-personal data, or has analytics capability, will be decisive.
Article 5(2) regulates platforms making use of combined personal datasets. Single sign-on platforms where personal data is combined for a comprehensive user profile, which data can then be sold to advertisers can be invasive from a privacy perspective. There are now clear provisions in the Digital Markets Act tied to the GDPR standard of consent, offering data subjects a choice as to whether they wish to have their personal data combined from several different platform services. Interestingly, asides from consent, there are quite limited other bases which platforms can use to legitimise such combined data. Currently commonly deployed bases for legitimising such processing such as legitimate interests or being necessary for a contract will not be available.
The Digital Markets Act now provides for a right for business users of a Gatekeeper to request, free of charge, high-quality and real time access to data which is generated in connection with its use of the Gatekeeper’s platform. Gatekeepers have a competitive advantage in the collection and use of both personal and non-personal data. Consider, for example, the position of a large eCommerce platform, which both provides the platform for sellers and sells goods themselves on the same online marketplace; there is a clear competitive advantage for the eCommerce platform in obtaining its competitors’ sales data.
In a similar vein, Gatekeepers will now have to provide access to competitors, on FRAND-style (fair, reasonable and non-discriminatory) terms, to details of competitively-sensitive search engine data which is used to refine search engine results.
If within scope, the Digital Markets Act should trigger a reassessment in corporate strategy relating to combining personal datasets. This is particularly the case where platforms use a single sign-on strategy for multiple services. Platforms will now need to have a consumer-ready platform available for those users where they cannot find a legitimate basis to combine end users’ personal data. The Digital Markets Act's data access provisions are also likely to be a significant operational burden; however, it remains to be seen whether it will pose a competitive risk to incumbents due to the scale of data needed by market entrants in the search engine space to be competitive.
There is much to take stock of in the Digital Markets Act. It clearly ushers in a new era for both data protection and competition law and, arguably, muddies the waters between the two areas. Interestingly, many of the obligations in the Digital Markets Act apply not just to personal data, but also to what is now being termed “non-personal data” which, in this context, is data which may be competitively sensitive or otherwise valuable. If you would like assistance navigating whether your platform’s activities are likely to be in scope of the Digital Markets Act, or this complex and evolving area generally, please get in touch with one of the team.
UK law firm Browne Jacobson, which opened its first overseas office in Dublin in September, has outlined its strategic plans to grow its legal team over the next four years.
Bishopsgate Corporate Finance and law firm Browne Jacobson have jointly advised on the acquisition of award-winning tech solutions business, Custard Technical Services by US managers services and cyber security provider, Thrive.
National law firm Browne Jacobson has advised long standing retail client, Wilko on the sale and leaseback of its Nottinghamshire distribution centre in Worksop to logistics specialist DHL for £48m.
In the ongoing complex litigation between Optis Cellular Technology LLC and Apple Inc., the Court of Appeal ([2022] EWCA Civ 1411) has upheld the High Court’s findings that implementers of standard-essential patents (SEPs) cannot refuse to accept a FRAND license and continue activities in the meantime which constitute infringement: that party must commit to accept a court-determined license if it wishes to avoid an injunction.
A deepfake of Bruce Willis is advertising Russian mobile phones. Many great artistic and metaphysical questions are raised by this performance. However, this article is going to look at the intellectual property law implications, from a UK perspective.
The Digital Services Act (the “DSA”) has today (27 October) been given the go-ahead by the EU Council and will enter into force by early 2024.
In a judgment handed down yesterday the Supreme Court has affirmed that a so called “creditor duty” exists for directors such that in some circumstances company directors are required to act in accordance with, or to consider the interests of creditors. Those circumstances potentially arise when a company is insolvent or where there is a “probability” of an insolvency. We explore below the “trigger” for such a test to apply and its implications.
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
It is clear that the digital landscape, often termed cyberspace, is a man-made environment, in which human behaviour dominates and where technology both influences and aids our role in it — through the internet, telecoms and networked computer systems, which are often interdependent. The extent to which any organisation is potentially vulnerable to cyber-attack depends on how well these elements are aligned.
A few weeks ago we brought you news that following the Government’s mini-budget it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 would be scrapped from April 2023.
Browne Jacobson’s corporate technology dealmakers have advised Agilico, a workplace technology business, on its acquisition of Capital Document Solutions Limited for an undisclosed amount.
The Supreme Court has unanimously dismissed the BTI v Sequana appeal and reviewed the existence, content and engagement of the so-called ‘creditor duty’; being the point at which the interest of creditors is said to intrude upon the decision-making of directors of companies in financial distress.
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Since the UK left the EU and are now able to move away from the EU data protection regime, the UK government have implemented a national data strategy with the aim of reducing the burden on organisations but maintaining a high data protection standard.
The Chancellor’s recent mini-budget provided a significant announcement for business as it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 will be scrapped from April 2023.
It was reported in May 2022 that the BMW-owned manufacturer had been forced to put a temporary stop on the production of all manual transmission vehicles due to the global semi-conductor shortage and the war in Ukraine. Mini stated that the move was made in order to "ensure production stability".
In this article we look at local authority companies and whether they are subject to the Freedom of Information Act 2000. And for those that are, what information are they legally obliged to submit.
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Browne Jacobson has bolstered its commercial practice in the UK with the appointment of commercial contracts and international trade specialist, Emma Roake, into its City-based London team.
Browne Jacobson’s national private equity (PE) lawyers have advised leading mid-market PE investment firm, Palatine Private Equity (Palatine) on its exit from CTS Group, the fast-growing specialist in testing, inspection and geoengineering consulting services to the construction and infrastructure sectors.
Browne Jacobson’s corporate finance lawyers have advised leading mid-market private equity firm, LDC and management on the sale of specialist managed IT services provider, Littlefish to Bowmark Capital.
The Digital Markets Act (the “DMA”) joins the dots between competition law and data protection law and actively targets data-driven platforms. It is also a comprehensive regulation to take note of, with familiar GDPR-style fines tied to turnover.
The use of social media platforms and applications can have overwhelmingly positive benefits for public bodies. However, regulatory action recently taken by the Information Commissioner, has highlighted various pitfalls that public bodies should seek to avoid if allowing staff to use social media as a communication tool.
Browne Jacobson’s private equity (PE) dealmakers have advised Palatine Private Equity backed CTS Group (Construction Testing Solutions Limited) on its acquisition of In Situ Site Investigation, a market leader in Cone Penetration Testing and Pressuremeter techniques and ground investigation services.
Browne Jacobson’s corporate finance lawyers have advised leading private equity investor, Rcapital Partners LLP (Rcapital) on its majority stake acquisition of managing general agents (MGAs), UK General Insurance Ltd (UKG) and Precision Partnership Limited (PPL) alongside Montague Investment Group LLP who are taking a minority stake.
In an unreported case (Re Active Wear Limited (in Administration)), the High Court has ruled that an out-of-court administration appointment, instigated by a sole director of a company with unmodified model articles, was valid notwithstanding the earlier decision of Deputy Judge Farnhill (also in the High Court) in the case Hashmi v Lorimer-Wing (also known as Re Fore Fitness Investments Holdings Ltd) [2022] EWHC 191 (Ch) (02 February 2022).
Rolls-Royce has shortlisted six locations for its first factory for small nuclear power stations. We look at the impact on regions & local businesses
There are clearly challenging macro-economic factors at play but at Browne Jacobson we continue to see good levels of transactional activity with certain sectors being particularly buoyant: healthcare, financial services, energy & infrastructure and tech.
The Court of Appeal has dismissed two cases regarding rent arrears accrued during the Covid lockdowns. The cases are London Trocadero (2015) LLP v Picturehouse Cinemas Ltd and Bank of New York Mellon (International) Ltd v Cine-UK Ltd.
Browne Jacobson’s corporate lawyers have successfully advised the shareholders of specialist chemical manufacturer, Amity International on its acquisition by Belimed AG, a subsidiary of Metall Zug AG.
In the recent case of Dwyer (UK Franchising) Limited v Fredbar Limited and ano’r [2022] EWCA Civ 889, the Court of Appeal considered the reasonableness of restrictive covenants in a franchise agreement.
Browne Jacobson’s Manchester based corporate lawyers have advised tech enabled shipping and logistics service provider, World Options on its majority buyout by Italian headquartered MBE Worldwide (“MBE”) for an undisclosed sum.
