Published by Suyao AO, PR & Communications Coordinator
On Oct 19, 2019, the Research Center of China-EU Innovation Policy and Law (CEIPL), Tongji University organized the 2019 Tongji Workshop on China-EU Innovation and Competition: Data, IP and Antitrust. Prof. Dr. Peter Georg Picht, Center for Intellectual Property & Competition Law, University of Zurich and Erik Habich, research assistant of Prof. Picht both gave speeches at the workshop.
In today’s Internet era, data has become the fundament of most Internet technologies, which is constantly misused. There seems to be no bypass of this, if you want to go with the digital trend. Or you might have to use an old cellphone without Internet options. Under these circumstances, how could personal data be protected? By the law of right to personality? By the law of delict? By the special law of data? Or by the competition law, if we talk about Facebook case in Germany. In this regard, Prof. Dr. Peter Georg Picht, gave a speech about data protection and Cartel Law in respect of the Facebook Case in Germany.
Prof. Dr. Peter Georg Picht, Center for Intellectual Property & Competition Law, University of Zurich
On 6 February 2019, the Federal Cartel Office, Germany's national competition regulator, filed an appeal to the Federal Court of Justice to restrict the data collection by Facebook in Germany for abusing its dominant market position to gather information about users without their consent. On 26 Aug 2019, the Higher Regional Court of Düsseldorf suspended the February decision.
The suspension is made based on that neither exploitation with abusive conditions regarding collection of user data, nor exclusion of competitors lacking comparable data collection opportunities has been shown by the Federal Cartel Office. For instance, normative causality or causality of results was not sufficient for exploitative abuse, and conduct causality between Facebook’s dominance and consumers’ acceptance of Facebook conditions were not shown. It was not substantiated which role Facebook-external data (data that Facebook collected from 3rd party websites) play as a barrier to market entry in relation to direct network effects from data generated on Facebook.
Prof. Picht thinks that the complete lack of harm by Facebook’s data-related conduct for consumers in this case is doubtful, but the competition law might be the wrong remedy. It is also important that illicit conduct by dominant undertaking does not automatically constitute a violation of competition law and that genuine competition law balancing of effects and interests is still outstanding.
Erik Habich, Center for Intellectual Property & Competition Law, University of Zurich
Erik Habich, research assistant of Prof. Dr. Peter Georg Picht then further discussed about the FRAND (fair, reasonable and non-discriminatory) commitments in data licensing based on recent case law from Germany. Mr. Habich gave some examples of the prongs and discussed the FRAND offer relevant to the prongs.
Besides University of Zurich, scholars and experts from MaxPlanck Institute for Innovation and Competition, Humboldt University of Berlin, Fudan University, Shanghai Jiaotong University, Tongji University, Federal Patent Court of Germany and IP Court of the Supreme People’s Court etc. gathered at the Shanghai International College of Intellectual Property (SICIP), Tongji University to discuss the better solutions for data protection from the perspectives of IP and antitrust.