Consumer Privacy and Anticompetitive Exclusion

As privacy law ascends in importance, the appropriate interface between antitrust and privacy law requires greater attention. This article considers one aspect of that interface. In particular, relying on a recent U.S. Ninth Circuit case involving hiQ and LinkedIn as a motivating example, this article demonstrates that the privacy choices of a user of a platform are analogous in antitrust-relevant ways to exclusive contracts. Users may opt for privacy settings that exclude competition by barring access to a key input, data, to potential rivals to that platform. A collective action problem implies that such choices may be individually rational even if harmful to competition and therefore to users as a group. Externalities between those choosing privacy and those benefiting from competition may also lead to anticompetitive exclusion. The article explains the exclusionary properties of privacy choices and reviews their legal implications, including a call for competition law adjudicators to treat privacy defences to anticompetitive behaviour with scepticism.