Abstract
This study discusses the intersection between the Act on the Protection of Personal Information (APPI) and the Anti-Monopoly Act (AMA) in Japan, by focusing on abusing superior bargaining position from platform operators. My analysis is based on examinations of the provisions and related guidelines of AMA, the relevant provisions of APPI, and comparisons between the two regulations. Based on these findings: (1) most of the types of abuse which the Guidelines on Abusing Superior Bargaining Position (ASBP Guidelines) presented by Japan Fair Trade Commission (JFTC) overlap with APPI provisions; (2) restrictions on abusing superior bargaining positions could play a specific role by applying itself to profiling activities which APPI might not effectively regulate. However, the possibility for indefinitely expanding the scope of “superior bargaining position” and the scarce experiences of administrative fines would be challenges for AMA. In addition, clarifying the theoretical reason to incorporate privacy and personal data protection into AMA would be a fundamental issue. Other than abusing superior bargaining positions, cooperation or conflict between anti-monopoly law and protection of personal information law need to be carefully examined depending on the situation, such as refusal of deal, and merger. While privacy and personal data must be the first priority in laws designed to protect personal information, competition law and other adjacent laws are increasingly significant. Studying them can offer a different perspective on the protection of personal information.
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Notes
- 1.
The term “personal data” in ASBP Guidelines covers the same scope of APPI. Under APPI, “personal information” and “personal data” have different definitions. The latter means personal information constituting a personal information database etc. under Article 2(6) of APPI, which is narrower than the former [5].
- 2.
For instance, this is exemplified by a case that a digital platform operator acquires gender and occupation information from consumers beyond the scope necessary for the sale of goods without obtaining the consumers’ consent.
- 3.
The other acts include Act on the Protection of Personal Information Held by Administrative Organs, Act on the Protection of Personal Information Held by Independent Administrative Institutions.
- 4.
This refers to someone handling a personal information database etc. for business use (Article 2(5)). A “personal information database etc.” roughly means a systematically organized collective body of information comprising personal information (Article 2(4)).
- 5.
APPI tentative translation was partially altered to make the provisions clearer.
- 6.
More detailed definition is provided in Article 2(1)(i)–(ii).
- 7.
Other than Article 84, if an operator handling personal information, its employee, or a person who used to be such a business operator or employee has provided or exploited personal information database etc., for the purpose of seeking their own or a third party’s illegal profits, they would be punished by imprisonment with labor for not more than one year or a fine of not more than 500,000 yen (Article 83).
- 8.
An order would be made when a business handling personal information has ignored a recommendation issued by PPC (Article 42(2)). If there is a need to take urgent action due to an event that seriously harms an individual’s rights and interests, PPC is authorized to make an imminent order to a business handling personal information (Article 42(3)).
- 9.
ASBP Guidelines state “A digital platform operator has a superior bargaining position over consumers who provide personal information, etc. when the consumer, even though suffering detrimental treatment from the digital platform operator, is compelled to accept this treatment in order to use the services provided by the digital platform operator.” [2, p. 4–5] This condition is applied to most cases between a digital platformer and a consumer transaction when personal information is a subject of trade.
- 10.
See Ohlhausen, M.K., Okuliar, A.P.: Competition, consumer protection, and the right [approach] to privacy. Antitrust Law J. 80(1), 121–156 (2015). See also, Averitt, N.W., Lande, R.H.: Using the ‘consumer choice’ approach to antitrust law. Antitrust Law J. 74(1), 175–264 (2007); Costa-Cabral, F., Lynskey, O.: Family ties: The intersection of data protection and competition law in EU law. Common Mkt. Law Rev. 54(1), 11–50 (2017).
- 11.
The JFTC Guidelines to Application of the Antimonopoly Act concerning review of Business Combination (latest revision Dec. 17, 2019) shows how to assess the importance of data, by exemplifying a case when Company A has material input goods, such as data, and enters into a conglomerate business combination with Company B. The factors taken into consideration are: (1) what kind of data are held or collected by Company B; (2) how many data are held and how many data are collected daily by Company B from how wide an area; (3) how frequently does Company B collect data; (4) how many data are held or collected by Company B related to the improvement of the service provided by Company A in the product market. It is also considered how advantageous are the data held or collected by Company B as compared with the data available to the competitor (Company X) in the product market of Company A from the above perspectives (1) to (4). See Japan Federal Trade Commission. Guidelines to Application of the Antimonopoly Act concerning review of Business Combination (2019), https://www.jftc.go.jp/en/legislation_gls/imonopoly_guidelines_files/191217GL.pdf, p. 57. Though these factors do not directly affect the abuse of the superior bargaining position of a company to a consumer, they could be applied to a merger of companies profiting by handling personal information.
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Ishii, K. (2020). A Study on Abusing Superior Bargaining Position in the Anti-Monopoly Act and Its Relation to the Act on the Protection of Personal Information in Japan. In: Kreps, D., Komukai, T., Gopal, T.V., Ishii, K. (eds) Human-Centric Computing in a Data-Driven Society. HCC 2020. IFIP Advances in Information and Communication Technology, vol 590. Springer, Cham. https://doi.org/10.1007/978-3-030-62803-1_1
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