The Competition Bureau has made it a priority to put out a white paper this year about issues related to Big Data from a competition perspective.
Some lawyers wonder, however, if the Competition Act is well equipped to deal with those issues as they become more prominent, given the increasing role that data plays with business and the dearth of case law interpreting the act.
“As data becomes more valuable and more useful . . . it’s becoming an important competitive asset, at least in some businesses,” says James Musgrove, co-chairman of the competition and anti-trust practice at McMillan LLP in Toronto.
“If you have a merger with firms, and they both have key data sets in a particular area, that may make the merger anti-competitive. The way I try and think about these things is looking at it like any other asset and looking at the anti-trust implications of it.”
Musgrove says he is less concerned if data goes from one company to another, but he is more concerned if two unique or particular sets of data were part of a merger deal.
“You can’t play them off against each other or try to compete with them about that,” he says.
The Competition Tribunal has dealt with abuse of dominance related to data before, in an April 1995 decision in Canada (Director of Investigation and Research) v. D & B
Companies of Canada Ltd., 1995 CanLII 8 (CT), commonly referred to as the Nielsen decision.
There, the tribunal found that Nielsen had controlled the supply of scanner-based market-tracking services throughout Canada by entering into exclusive contracts with retailers, and it ordered Nielsen to stop enforcing those exclusive contracts.
“They were ordered to share some of their historic data with [competitor] IRI so that they could offer a bit of a competitive product in terms of historic information,” says Musgrove.
“Notwithstanding the order, nothing happened because the retailers were not obliged to be exclusive anymore, but they simply chose to stay because they were apparently quite happy with the arrangement, whether it was de jure exclusive or just de facto.”
A more recent case was the 2016 decision by the Tribunal in The Commissioner of Competition v. The Toronto Real Estate Board, 2016 Comp. Trib. 7, where the tribunal found that the Toronto Real Estate Board was inappropriately restricting the use of its listing data, and ordered that it be made available to other internet-based brokerages and other competitors.
“That case concerned data feeds for a particular kind of website offering — it’s got to do with certain items of information,” says Michael Osborne, partner with Affleck Greene McMurtry LLP in Toronto. While Osborne’s firm acted for TREB at the tribunal, he was not on the file.
Osborne says in the Toronto Real Estate Board decision, there is “countervailing policy argument that says this isn’t one firm’s data” but rather that it is the aggregation of data from across the industry.
“It’s intrinsically a shared resource,” says Osborne.
He says that lawyers should consider the decision with an “essential facilities matrix,” which is a difficult test to show that a monopoly can be justified if the facility cannot be practically or reasonably duplicated by a competitor. Osborne adds that the decision also involves legal issues around copyright.
“In TREB, the tribunal rejected the notion that the database is copyrighted,” he says.
The TREB decision is being appealed to the Federal Court of Appeal. Osborne says that, 20 years ago with Nielsen, the issue was an exclusive relationship to collect the data, whereas the TREB decision deals with who can use that data and who can have access to it.
The fact that the bureau recently dropped an investigation of Google regarding abuse of dominance — a practice where a major market player uses its position to exclude other players — saying that it concluded that such an action could not proceed may be a factor in why it has decided to issue a white paper on Big Data.
“They refer to it in one of their papers as it being the next form of oil commodity, and it is for sure looking to the future as to whether or not it needs additional powers to deal with that situation in the future,” says Jean-Marc Leclerc, partner with Sotos LLP in Toronto.
Leclerc says the investigation by the bureau into Google’s dominant position and the TREB decision shows that the federal bureau, and lawyers who practise competition law, are looking at new areas where the Competition Act may be applicable.
In the context of modern online social media platforms, Leclerc says, competition issues that arise out of one company’s monopoly over information doesn’t mean it can’t be targeted under the Competition Act.
“Clearly, it’s an evolving business scenario as to the importance of personal information that people have about themselves on the internet, and regulators are looking for ways in which to manage anti-competitive situations around managing that information in the future,” says Leclerc.
He says that, on the whole, the existing legislative tools are probably up to the job.
“What we do need to do is refine our thinking on these issues — how do we apply competition laws to the knowledge economy, to data, to algorithms, to online businesses the way business is done today.”