The Tipping Point – Reevaluating the ASNEF-EQUIFAX Separation of Competition of Data Privacy Law in the Wake of the 2017 Equifax Data Breach

Altmayer, Olivia | January 1, 2018

Contrary to the Court of Justice for the European Union’s decision in the Asnef-Equifax case, in a world of big data, it is inefficient and ineffective to treat EU competition law and EU data protection law as entirely separate legal considerations. Reevaluating this stance is critical in sectors where customer data is highly sensitive, and therefore highly valuable to those who steal it, particularly for the financial and healthcare sectors. Looking forward, companies that store and use biometric data will have to be similarly scrutinized. To correct this problem, the EU has numerous paths it can take: (a) continue as is, treating competition and data protection as separate legal considerations, (b) enact a new body of regulatory law to specifically deal with data protection and competition, or (c) begin using existing competition law, specifically Article 101 of the TFEU, to address data protection concerns. This paper will argue that to best serve the interests of all relevant players – government, businesses, and consumers – option (c) is the optimal choice. Additionally, in implementing this change, the EU can use the FRAND patent and competition law precedence in devising a new data protection and competition framework.