Consumer sovereignty and competition law: From personalization to diversity

Data-driven technologies provide businesses with ever-stronger abilities to engage in behavioural manipulation, steer consumer preferences and exploit individual vulnerabilities. The paper argues that competition law needs to give more prominence to consumer sovereignty and consumers’ freedom of choice in response to the rise of personalized forms of consumer exploitation by dominant firms, whose harm goes beyond the scope of the remedies data protection and consumer law offer. Analysing the scope to establish exploitative abuses under Article 102 TFEU, the paper discusses how personalization challenges current competition concepts and submits that competition analysis needs to be adapted at the stage of assessing abuse to address competitive harm from personalization. The paper proposes to recognize “personalized exploitation” as abuse of dominance by incorporating dynamic consumer vulnerabilities into the competition analysis and by assessing anticompetitive effects against a “personalized welfare standard” of those exploited instead of against the overall consumer welfare.