Data Privacy: An Indian and international perspective

Data privacy has risen up the Boardroom agenda for businesses internationally, with concerns such as cybercrime, data theft and scams to name but a few.  New legislation such as the General Data Protection Regulation in the EU has focused the minds of individuals on their rights to protection against unwarranted intrusions into their privacy.

But the issues go beyond Facebook.  Policy-makers, legislators and regulators are still grappling with how to address data privacy concerns where protection for fundamental rights faces different cultural norms and expectations. 

In India, the nuclear family and other cultural factors which have traditionally blunted calls for greater privacy protection have given way to urbanisation and changing expectations. The growth of the internet and digitisation have fuelled the demand for greater protection of personal space.  The Supreme Court has asserted that the right to privacy is a fundamental right.

Against this background, the Government of India has set up a Committee of Experts under the chairmanship of former Supreme Court judge Shri B N Srikrishna. The final draft of The Personal Data Protection Bill, 2018 alongside the Expert Committee report was submitted to the government on 27 July 2018.  This represents a significant milestone in India’s data privacy journey as it seeks to strike a balance between the challenges and opportunities of the digital era and the need for privacy protection. 

Join me in New Delhi on 24 August 2018 when I will be speaking about data privacy and related areas of compliance and risk management against the emerging contexts.

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Data Protection Framework for India

https://www.dsci.in/content/data-protection-framework-india

PSR Market Review: Card services

The Payment Systems Regulator (PSR) is proposing to conduct a market review into card acquiring services.  It seeks comments on its consultation on the draft terms of reference by 14 September.

The PSR finds that in the UK in 2017, 13.2 billion payments were made by debit card and 3.1 billion payments by credit card.

If merchants are to accept payments by card, they need to purchase card acquiring services and the costs they pay may be passed on to customers in the prices they charge.

The PSR wants to be satisfied that the market for card acquiring services is working well for merchants and ultimately benefits consumers.

Comments on the PSR’s consultation can be made here.

Reflections on Google after Android

Reflections on Google after Android

The European Commission has now issued its decision in the latest abuse of dominance investigation into Google’s business practices.  The Commission has imposed a record EUR 4.3 billion fine on Google attracting headlines worldwide.  Two days on from the decision, a few early themes are developing.

The theories of harm that the Commission has settled on are much closer to established case law.  The Commission finds that Google has acted abusively by unlawfully (1) tying its Search and Chrome browser applications by requiring smartphone manufacturers to pre-install these on Android devices if they also want to offer Google’s Play Store, (2) offering financial incentives to those manufacturers to exclusively pre-install Google Search, and (3) hindering the development of rival Android systems.

The fine represents a much higher percentage of worldwide turnover than in other cases and is larger than the EUR 2.4 billion penalty imposed just a year ago in the Commission’s Google Shopping investigation.  This is not surprising given the size of the relevant markets and the scope of the Commission’s findings in Android.

Google has understandably refuted the Commission’s case.  It says that the Commission failed to take sufficient account of competition from Apple’s iOS.  While there may be competition between Android and Apple at the retail level, this appears to miss the point.  The issue at stake in this case is whether Google had sufficient market power over smartphone manufacturers at the stage of pre-installation of apps and where important technology choices are set.  Apple does not license its iOS to manufacturers.

Questions remain as to the effectiveness of remedial measures and what form they will take.  To ask Google to stop the practices that the Commission has found to be infringing may not go far enough for some complainants.  It is not clear whether other apps might be in scope.

Although the Commission’s decision has settled the latest stage in this three-year long probe, there remain questions as to whether the outcome will deliver what rivals have been seeking in terms of levelling the competitive playing field.   The Commission launched its investigation in 2015, but significant complaints were made before then.  

The challenge for regulatory intervention in a technology environment is getting the right balance.  Consumers have grown accustomed to using Google services as default options.   The Commission faces no easy task in trying to overcome consumer acceptance of those products and services over the years.  Whether this is as a result of superior products and services - or as a result of the practices that the Commission has found to be problematic - depends on whether you are ‘pro-Google’ or not.  And views can be quite diametrically opposed.

https://www.bbc.co.uk/news/technology-44858238

https://www.linkedin.com/feed/update/urn:li:activity:6425637450982453248

Further Google apps abuse of dominance complaint

Mobile app store Aptoide has reportedly filed an abuse of dominance complaint against Google with the European Commission.  It claims that Google has blocked Aptoide’s own application from working on Android devices.

Aptoide offers an alternative to the Google Play Store and claims that Google has used antivirus software to prevent use of the competing application purchasing store.

Aptoide has said that it filed the complaint with the European Commission earlier this week and that this is not its first complaint against Google.  Aptoide was a vocal complainant in the EU abuse of dominance mobile operating and search services investigations.  The Commission’s decision in its investigation into Google’s allegedly restrictive licensing conditions imposed on mobile phone operators is expected imminently.

Meanwhile, Google faces litigation in the UK and Australia from Unlockd which claims that Google abused its dominant position by threatening to remove applications using its advertising system from the Google Play Store.

Court of Appeal rules that Visa and MasterCard interchange fees restricted competition

The Court of Appeal has ruled in appeals in three cases concerning claims for damages against Visa and MasterCard alleging that their multilateral interchange fees (MIFs) infringe Article 101 TFEU.

The first two cases concern High Court judgments that dismissed claims against, respectively, Visa and MasterCard. The third is an appeal by MasterCard against the Competition Appeal Tribunal’s 2016 judgment awarding damages to Sainsbury’s.

In a 99 page judgment the Court of Appeal followed the ruling of the European Court of Justice in 2014 finding that Mastercard’s MIFs restricted competition within Article 101(1) and overturned Phillips J's November 2017 ruling that Visa's UK MIFs did not restrict competition within Article 101(1).

The Court of Appeal referred the cases back to the CAT to reconsider issues relating to application of Article 101(3) and quantum.

The Court of Appeal found that it was not necessary for it to undertake a complete review of the evidence to conclude that the CAT lacked an evidentiary basis for its finding that significant MIFs would have been agreed on a bilateral basis in the absence of the MIF.

The CAT will not hear new evidence (save on certain elements of quantum).  However, in an attempt to avoid arbitrary results the parties will be able to rely on generic evidence in the other cases that are equally applicable to both schemes.

Sainsbury’s Supermarkets Ltd v MasterCard Incorporated and Others, Asda Stores Ltd and others v Mastercard Incorporated and others and Sainsbury's Supermarkets Limited v Visa Europe Services LLC, Visa Europe Limited and Visa UK Limited [2018] EWCA 1536 (Civ) (4 July 2018).

Application to bring collective proceedings against trucks manufacturers

The Competition Appeal Tribunal has published a notice of an application for collective proceedings in a competition damages action under section 47B of the Competition Act 1998 against Fiat Chrysler Automobiles N.V., CNH Industrial N.V., Iveco S.P.A., Iveco Magirus AG and Daimler AG.

The proposed action combines follow-on claims arising out of the European Commission’s decision - in Case AT.39824 – Trucks - announced on 19 July 2016 that it had imposed fines on four truck manufacturers (with a fifth receiving immunity) for their participation in a cartel for medium and heavy trucks in the EEA.

The applicant has applied for a collective proceedings order for it to act as the class representative in opt-out collective proceedings or, in the alternative, on an opt-in basis.

The proposed class comprises persons who, between 17 January 1997 and 18 January 2011, acquired one or more new medium or heavy trucks registered in the UK.

The commencement of collective proceedings under section 47B of the Competition Act, and the suitability of the proposed class representative, must be approved by the CAT.

The CAT will now consider whether to make a collective proceedings order.

The application follows the CAT’s 2017 rejection of an application by Walter Merricks as the putative class representative for a collective proceedings order in a £14 billion opt-out action against MasterCard.  The proposed proceedings would have aggregated follow-on actions for damages arising from the European Commission’s finding that MasterCard's EEA multilateral interchange fees infringed Article 101 TFEU.

Case 1282/7/7/18 - UK Trucks Claim Limited v Fiat Chrysler Automobiles N.V. and Others