Please note: this article is a long read. The lack of a standardised approach to data collection, privacy assessment, and controversy surrounding the recent investigations[1] indicate challenges that are not initiating traditional anticompetitive scrutiny.[2] The debate on the intersection between competition law and privacy constitutes a major challenge for the existing competition law framework. The notion of privacy has achieved extensive attention from academics and adjudicators, indicating its dynamic nature.[3] The unprecedented magnitude of data collection could raise challenges for both society and legislation, as it has emerged that personal data is seen as a tradable commodity,[4] placing companies in a position where the data helps them to achieve a stronger position in a market. The aspects of personal data protection have had a numerous impact on the framework of competition law — from the anticompetitive agreements to abuse of dominance or merger control. The merger control and abuse of dominance related to competitive harm through the access to substantial customer data; the price-fixing cartels are replaced by irretraceable algorithms based on access to Big Data. Online platforms offer a high quality of digital services and products to users without imposing any monetary price, however, they keep obtaining revenue from the advertisement-based business models, based on collection and procession of data. Examples of such networks are extensive and cover the platforms including Facebook, Youtube or Google. The business models are ambitious without a clerkly defined context of personal data. As would be noted below, the twofold features of their business model might have both advantages and disadvantages for market participants. The more data is collected and processed, there are higher chances of valuable correlation, information and prediction to be obtained. Such data is then used to improve the quality of both paid and free services, and to create new ones. Therefore, the practice of online firms to collect and process exceedingly large amount of data through the use of advanced algorithms to reveal trends, associations and patterns of their users, deserve special attention of competition authorities due to their novel dimensions to market power. The rapidly evolving digital economy raised challenges at two distinct levels: practical and policy levels.[5] The former concentrates on the added complexity in the assessment of the anticompetitive behaviours and conducting a dynamic enforcement assessment, which includes the additional challenges in the competitive pressure, and self-correctness of markets. The latter focuses on the novel competition dynamics, which raise the issue of the normative scope of competition enforcement. Such analysis is often important to arise with optimal use of competition law, and broadly — its goals. There is a broad consensus that the digital economy is a key driver to future prosperity, which, unquestionably has revolutionised business models, services/products, and social interactions. Furthermore, it is also undisputed that the digital economy has introduced new constraints in delivering innovation, efficiencies, and consumer welfare, as well as stimulated market dynamics. The article provides a basic discussion of the unique features of the digital free technology economy and discusses the potential limitations of the EU competition legal reasoning in the cases concerning privacy breaches. In essence, this article is about the Big Data-fuelled industries in transition which, because of significant developments, also highlights the difficulty in anticipating the new structural form of the industry. In terms of the normative debate on the objectives of competition law within privacy concerns investigations, the discussion is provided in the doctrinal context. The assessment is carried out concerning the current doctrine on the competition law goals, and this is going to act as the foundation of the article, allowing to deduce the favourable objectives of the competition law within privacy concerns investigation. In contract, socio-economic research on the context of privacy investigations would not be appropriate, due to its extensive nature on the socio-economic consequences of digital technologies and its impact on consumers’ lives and would take away the main focus of this research. Setting the context: the proliferation of privacy value and unique nature of the digital economy The aspects of Big Data and the digital services have attracted a lot of attention of academics, regulators, businesses and consumers. Unquestionably, the data collection and procession have become a central element of many digital platforms, which some reach a huge number of users. Digital platforms have become an inevitable part of commercial and social interactions, and the use of data is deeply grounded in the aspects of business-to-consumer relation. It has been widely discussed that the extensive data collection creates challenges for antitrust regulations which aim to preserve competition. The concept of privacy might be defined both in a broad and narrow sense. Unquestionably, any breaches of privacy affect a great number of peoples and could potentially compromise the process of democracy.[6] Yet, the precise contours of privacy effect constitute a subject of extensive academic discussion. Many perceived the EU legal order as offering the most attractive personal data protection. Article 16 TFEU serves as a basis for the EU data protection.[7] Further protection of personal data is offered by the Charter of Fundamental Rights of European Union, where Article 8 recognises personal data as a proactive right that reaches being individuals’ protection against the intervention of a state.[8] As per Article 8 of the Charter, personal information of individuals could be proceeded by anyone, including the State. Such a wide right is subject to Article 8(2) and (3), requiring any information proceeding to be fair, transparent and lawful for individuals. The protection has been more recently ‘enriched’ with the implementation of the General Data Protection Regulation (GDPR).[9] The GDPR’s fundamental principle is the requirement to establish a legal basis for personal data processing,[10] requiring of a data subject’s explicit consent. Under the GDPR, the processing involves any activation which could be pursued with personal data, defined as any information acquired relating to natural persons, and allows for their potential identification. The GDPR also introduced clarity of its regime by defying key issues, such as the definition of ‘data subject’ as any person of whom data is collected;[11] and ‘data controller’ which refers to any person that proceed the acquired data.[12] Importantly, the key feature of the GDPR’s regime is a consent, which has to be unambiguous, specific, informed and freely given. The GDPR strengthened the protection of personal data and, simultaneously — users’ privacy. The GDPR sets a basic required for the effectiveness of the legal consent for the data processing, which requires the consent to be specific, unambiguous, freely given and informed;[13] granted by individuals by clear affirmative action, or by a statement, which signifies a consent to proceed their personal data. In this respect, the GDPR represents a twofold nature: individuals are asked to consent for any data proceeding making it clear that a digital platform or services would rely on their data and consequently have a right to be informed about the way their data would be proceeded,[14] whereas the data controlled is obliged to perform the data processing obligations with the guarantee that the data would be processed to the extent which is well-grounded and demonstrable as agreed by individuals. Generally, there is no ex ante choice available to the individuals, under the EU data protection law, as to whether they want their personal data to be processed. Although consent is required, individuals are unable to thoroughly consent to a real purpose of data processions. An attempt to define privacy from a competition law perspective could be witnessed by the Bundeskartellamt’s (BKA) Facebook case. The assessment of the privacy protection rights in the case begins with a simple principle: personal data processing can only take place once data subjects agreed to their data being processed,[15] or when data processing is granted by the law.[16] The BKA took an approach of a data protection authority and explained that the Facebook’s T&Cs were deemed as appropriate within the remits of the GDPR, noting several points from privacy protection’s perspective. Firstly, the BKA noted that Facebook’s users were not aware of the means to which Facebook collected and processed their personal data, which constituted a not genuinely and well-grounded consent from their users. Also, users were not likely to expect that Facebook also analysed the data from different websites.[17] Objectives of EU Competition Law EU competition law rules have been clarified through different case law and official publication over the years, with its key objective being often proclaimed to be: “the creation and preservation of an open single market promotes an efficient allocation of resources throughout the Community for the benefit of consumers.”[18] Hence, the promotion of market integration appears to be a key feature of competition law. Yet, the EU Commission safeguarded the market competition as a means of consumer welfare enhancement, ensuring an efficient resources application,[19] as well as protecting ‘not only the interests of competitors or consumers, but also the structure of the market and, in so doing, competition as such.’[20] The unique DNA of the EU competition law by its ethos might be challenging or controversial, as lacking clarity over pursued goals. The competition law values and goals might overlap with each other or reveal some conflicts. Hence, Ezratchi suggested that their implementation could require trade-offs between the goals, which could introduce further ambiguity or balancing points.[21] The above considerations ought to be interpreted in the scope of wider European normative values, ensuring the consistency between the EU’s policies and activities. Arguably, the EU policies would be implemented by considering social protection,[22] consumer protection,[23] public health,[24] equality considerations,[25] transportation,[26] regional development, investment[27] and environmental protection.[28] Yet, this multitude of goals (its position within the wider normative EU values) is unquestionably challenging, due to its effect on the desire to engage in economic analysis. This section applies the findings from the above discussion to assess the normative objectives of EU competition law, which could potentially apply to the anticompetitive investigations with the apparent privacy breaches. The section analyses the keynon-welfare and welfare objectives ascertained to the EU competition law regime. As discussed above, the concept of privacy might be defined both in a broad and narrow sense. Unquestionably, any breaches of privacy affect a great number of digital users and could compromise the democratic processes.[29] Yet, the precise contours of privacy effect constitute a subject of extensive discussion, assuming that the debate is more complex than primarily anticipated, as reliance on free high technology services and platforms does not necessarily evidence in distributing which objectives should competition law pursue. Hence, a further question might be asked: should we aim for protection of competition or consumers or both? The debate appears to be fluctuating around the assessment for the intervention desirability, based on better knowledge about the privacy concerns instances. In this respect, an assessment of the rationales behind each of the goals functions as a key prerequisite in undertaking the nature of privacy concerns, which could influence the rationale behind authorities’ investigations. The literature on EU competition law appears to suggest a multitude of different competition law goals being pursued, which at the different levels act as distant from each other to the extent that the debate amongst them becomes tenuous. The debate on the competition law goals is questioned on several levels of assessment. Firstly, the theoretical underpinning questions why competition law allows for such an objective, often put forward to the theoretical perspective to comply with political goals. The second underpinning bases on the assessment as to the origin from a particular goal, which later allows to rank the goals on its normative levels. Lastly, the underpinning focuses on the goals being derived from case law, or objectives pursued by the Commission or any other competition authority.[30] Since this research considers the intersection between competition law and privacy, the emphasis is also placed on the coherency of the legal arguments pursued by the EU Commission. Hence, the debate revolves around the interpretation within the framework of Article 102 TFEU, which aims at the prohibition of the abuse of a dominant position at the core, protecting the EU’s internal market.[31] The discussion in this section revolves around three key objectives of competition law, which are demonstrated considering the legal tests applied by the EU Commission, namely: protection of competition, protection of consumer welfare and efficiencies. The assessment of the previous EU Commission indicated that consumer welfare might be one of the key elements of competition law. Yet, simultaneously, the set of investigation is based on the opposing objective of protection of competition law, as originating from the competition law rules. Equally, the third objective of efficiency is based on the assessment of market integration, as a key prerequisite to improve the prosperity of the EU. The assessment of privacy concerns within the remits of competition brings these three elements with each other. Hence, the section considers only these free objectives. Furthermore, as the discussion indicates, the BKA’s Facebook case remains the sole proceeding involving an intersection between competition law and privacy concerns. There is no legal equivalent available at the EU level. In this respect, the further discussion is enriched by reference to different proceeding involving digital services and products. Non-welfare objectives in the assessment of privacy concerns Protection of competition structure and competition The core differentiation in this section is following: the term ‘protection of competition' describes situations to ensure no reduction in the processes of competition, whereas the concept of competition describes the market with multiple competitors.[32] Potentially, the current competition policy narrative aims at effective competition processes, aiming at the protection of competitive structures, and subsequent protection of competitors on a market.[33] Furthermore, the assessment of competition processes protection, within the privacy protection cases, would be based on the assumption that certain digital undertakings are capable of storing a vast quantity of personal data. In this respect, the concept of privacy protection introduces certain industrial elements which are necessary for the competition law assessment, and, in this respect, the definition of privacy acts as a broader prerequisite. The variety of goals pursued by EU competition law is growing broader with the case law evolution. Notwithstanding, the EU competition law regime demonstrates a pragmatic interpretation of competition law and adheres to a classical provision: deontology and efficiency. Advocate General Kokott, in the British Airways case, expressed that one of the competition law goals exhibits the objective of protecting the competition as an institution since competition law is interlinked with the protection of the internal market.[34] Furthermore, in the same case, the Court, relying on the Continental Can judgement,[35] indicated that Article 102 TFEU aims both at the protection of consumers and competition, from any practices prejudicing their welfare and having detrimental effects on the competition structures.[36] In that sense, competition could be protected where the number of competitors is reduced, assuming that competitors are not stopped from competing on merits.[37] However, the aspect of effective competition protection does not refer to a competitors’ number but aims at ensuring the competitiveness of the market, which produce benefits for consumers. The evidence that protection of competition is the most important objective of competition law could originate from several sources, including academic literature but also the ideological organs of the law itself. Beginning from the economic ideology of Ordoliberalism, which influenced the regime of EU competition law.[38] The EU competition law proclaims a special responsibly of dominant undertakings, obliging them to function in a way that does not harm the competition processes.[39] Hence, the protection of competition is a very important objective of competition law: competition policy is one of the several key policies that serve in the advancement of the EU goals, which ensures a healthy functioning of the internal market, as per Article 3 TEU.[40] The concept of the internal market requires elaboration within the remits of competition law.[41] Establishment of the internal market allowed for the creation of further economic benefits, which promotes efficient allocation of resources throughout the EU with the aim of consumers’ benefit.[42] Some of the cases that impact the market integration issues within the digital economy include: contractual restriction used to restrict from selling/buying goods online,[43] or technological specification used for geo-blocking,[44] warranty restrictions,[45] or limitation on broadcasting.[46] Yet, the concept of market integration is a neutral term, attached to the subject-matter analysis of competition law rather than a self-standing objective of competition law.[47] During the analysis of the potential market structure, a further argument might stipulate that observation of the market remains an important prerequisite in the assessment of behaviour on a particular market over a certain period.[48] In the situations where the outcome of the market is required, the subject-matter of the analysis is the outcome of the market behaviour conduct;[49] competition law tends to look backwards, and observing market outcomes, which allows to perceive if a particular conduct was harmful to consumers as well as internal market. For instance, with a lack of competition in the digital economy market, any dominant platforms might increase demand for data in order to sell more advertisement. However, any enforcement is only precipitated when abuse can be demonstrated. The market structure effect would be required to assess the outcome of the subject-matter analysis on the behaviour of the market and not the consideration of the market structure. Importantly, the debate on privacy concerns and competition law appears to be myopically, as focuses solely on consumer welfare without considering a wider objective of protection of competition structure. Considering the role of data in the creation of a platform value, it can be deduced that the digital platforms rely on technology to aggregate services and content which allows to connect users for the different purposes of sharing, transactions or communicating. Hence, the potential privacy violation arising from an aggressive data acquisition is that Big Data connotes the concept of Big Analysis, which is a competitive danger. From the digital economy prism, the protection of economist stricture offers an independent mandate for intervention, detached from a direct effect on consumers. Yet, it does not necessarily have to result in more aggressive enforcement, but arguably more effective approach in the digital economy scope. Also, a focus on competition processes demonstrates the scope for a potential negative impact by the use of networks, data pool as a potential expansion to raise rival’s costs or introduce barriers to entry. Hence, there is an increased significance of data in markets recognised due to its influence on competition distortion. Hence, the question as to whether the potential privacy breaches might influence the competition law structure could be answered by Ezrachi’s analogy, which pictures the relationship between competition policy and wider societal deliberations with a sponge and membrane analogy.[50] In his research, he recognises competition law as a sponge with a political core, and economics as a membrane which allows certain external by-passes into its realms.[51] Consequently, both general values on the maximisation of consumer welfare and social and political priorities, that shape local enforcement, could be part of the competition law objectives. Competition policy objectives need to be carefully defined, as the incorporation of a multitude of different local political principles might lead to the unpredictability of the competition law enforcement.[52] Furthermore, the element of ‘effective competition structure’ might be linked to the consideration of choice in the digital economy sphere, introducing important benchmarks for the assessments of limits imposed via tying practices,[53] or reduced interoperability. Ezrachi noted a potential angle of introducing an upstream effect on how bottleneck digital players, impacting on input providers’ viability through practices, negatively affecting upstream, downstream markets and end-users.[54] Economic freedom indicates that healthy competition structures offer an unfettered exercise of choice. In this respect, Rubinstein noted that data mining destroyed informed choice due to lack of users’ knowledge and notice how the Big Data is used/processed/acquired/stored, as well as it remains unclear whether the right to be forgotten and data portability, the key features of the GDPR regime, are capable to be applied to novel knowledge acquired from personal data that has been anonymised or generalised by being put into group profiles.[55] Hence, freedom of choice and competitive marketplace are key elements in the realisation of the democracy and other freedoms pursued by the EU, with the economic plurality acting as an example of protecting wider policy examples. Therefore, the preservation of economic freedom could be a precondition for democracy, and as a result, safeguarding against regulatory or political capture.[56] In a healthy functioning competitive markets, products are offered at lower prices, and better quality of product/services is likely to attract consumers, guided by informed choices. Such a process is further subordinated by better competition and innovation in a ‘virtuous circle’.[57] Unquestionably, digital platforms, due to the proliferation of data-fuelled platforms and services, are becoming monopolies. Yet, a demonstration that all digital platforms demonstrate anticompetitive features could be preliminary wrongful. Therefore, regulators might be required to go beyond the scope of the existing competition law rules and consider a bigger picture. The digital markets are more dynamic than static and require careful considerations, due to the abstract nature of the data-fuelled markets. Yet, there could be potential problems identifiable in elevating of the protection of market structure to the ultimate objective of competition law regime. One of the potential problems lays in defining the competitive process.[58] Even if the definition of competitive processes encompasses the rivalry amongst firms on a particular market, the standards cannot distinguish between any further anticompetitive misconduct from functioning market equilibrium.[59] By solely focusing on the matters of competitive processes, it is impossible to reach a consensus whether it would be necessary to add a further objective of protecting competitive process, introducing a further normative standard to establish undertaking’s conduct as violating the competition law regime. In this respect, any normative standard should not be the competitive process in itself, because it would not have allowed for further analysis of the market equilibrium. In the EU, the decisions which articulated privacy as non-price competition factor are Facebook/WhatsApp and Microsoft/LinkedIn mergers. In the Facebook/WhatsApp merger, the Commission held that in the consumer communications markets, privacy is the key element of competition.[60] In this case, the Commission realised the need to recognise the data privacy as introducing competitive edges: privacy is valued by consumers. In Microsoft/LinkedIn, the Commission further supported such a statement, stating that privacy concerns can be considered during the competition assessment to the extent that consumers see it as ‘a significant factor of quality’,[61] indicating that ‘data privacy was an important parameter of competition between professional social networks on the market, which could have been negatively affected by the transaction’.[62] Returning to the concept of preservation of the market structure, which safeguards competition processes, Acquisti inquired whether market forces are capable to maintain a balance between privacy and disclosure in the environment where personal data unfold electronic data trains and where the information available is more respected over the informational protection in the instances of economic interests.[63] In both unilateral conducts assessments and merger reviews, structural remedies are preferred,[64] diverse to shrink the assets and markets, rather than provide with remedies which would require firms to regulate their conduct. In this respect, the aspects of market condition receive less attention. Competition law enforcers would not generally consider the basic market conditions, as it is beyond their legislative power. Yet, in the privacy protection cases, competition authorities might be unable of creating and enforcing any behavioural requirements acting as a means to protect consumers’ privacy. Some features of the data-fuelled industry make it unlikely that any market forces or private investments could result in socially optimal outcomes. Potentially, investors could not be able to capture the benefits of production of the common good, such as cybersecurity. Yet, in other cases, due to network effects, consumers cannot perceive the benefits of increased output.[65] Furthermore, the EU Commission discussed the calculation of the market share,[66] which is unquestionably an example of the instrumental approach to the assessment of the market.[67] Yet, such an approach demonstrates perils. The defined tests such as SSNIP-test might not explicitly work in the digital economy, especially in the cases regarding privacy protection, as their rationale is based on price deliberations.[68] The SSNIP test might bear a problem of the ‘cellophane fallacy.’[69] Markets, with little or no competition, might distort the protection of privacy, due to anticompetitive donuts of undertaking, which enjoys a strong market position. Yet, the non-price market's elements acts as stripping off consumer rationalities, which do not provide an explanation of market’s functions. This corresponds to the prime problem, namely: how do the digital undertakings process the users’ data? Hence, the question remains whether the privacy could be collected with income, or whether privacy could influence competition law. Potentially, this discussion could be reverted to the sphere of Big Data and Big Analysis concept which was briefly discussed above. Big Data is currently seen as the new oil,[70] and some data acquisition could result in the data protection law breach. Nevertheless, the sole discussion, in this respect, should be devoted to the concept of Big Analysis, based on personal data acquired allowing digital undertakings to establish the knowledge which could introduce anticompetitive conducts. For example, in Google Shopping, the conduct of Google artificially diverted the traffic from rival shopping comparison services, and hence, hindered the ability to compete.[71] Clearly, such conduct bore a negative impact on innovation and consumers. The Commission argued that users did not necessarily see the most relevant result when comparing their shopping results. In turn, this lowers the incentives to innovate — the rivals’ products would not benefit from the same prominence as Google’s products.[72] In other words, the price of privacy is difficult to be ascertained. The Internet’s cornerstone is personal data, which is a necessary component of digital platforms’ business model, such as Facebook and Google. The digital platforms acquire and treat data, as a necessary component to improve the quality of their services, aiming at enhancing their attractiveness to the existing and any potential customers. Consequently, digital platforms can monetise their services and products through often targeted/behavioural advertising. In this respect, the volume and quality of the possessed personal data is a key competitive element. Without any doubt, online users benefit from the digital service providers’ ability to process their personal data, acquired through the agreement between a user and a service/product provider, in the terms of a better content or more targeted advertisement. Unquestionably, the acquisition of the large quantity of data might introduce competitive restraints in the form of high barriers to entry which in hand introduces a poor competition in the digital market. With a proliferation of new digital business models, an increased number of digital companies possess a large quality of personal data.[73] In this respect, there has been a potential debate in the establishment of a test allowing to define the market for free products — small but significant non-transitory decrease in the quality, based on the SSNIP, with differentiation to consider the products’ quality to the price consideration.[74] Although the digital platforms can improve their services, based on the personal data acquisition,[75] the sole consideration of quality might not be a decisive parameter to decide the anticompetitive conduct, influencing the market structure, since it has been widely accepted that economic consideration is of utmost importance in determining both the anticompetitive types of merger/unilateral agreements but also the types of any justifications that might be used to justify any mergers/unilateral agreements. In this respect, competition law issues might arise in several different contexts, for example, online services might try to acquire the data through anticompetitive means or seek to prevent other competitors from acquiring data. There are unquestionable positive effects of the personal data acquisition by online service providers, due to its high impact on performance, including high-quality, zero-priced services. Diversely, personal data plays also a vital role for the paying side of the market. The online advertising value aims at targeting specific needs and preferences of particular users, which is different compared to other media like radio, television, or billboards. Therefore, two elements are necessary for the success: high quality of free services and generation of revenues through advertising. The data protection concerns analysis also brings a debate on its intersection of competition law, considering the limits to the accumulation and processing of personal data. There could be several reasons for competition law’s involvement within the data-fuelled economy. Firstly, there is a significant investment of political energy and time required to enable antitrust actions to advocate privacy protection. Secondly, antitrust actions could introduce unintended consequences in the absence of any comprehensive privacy protection undermining. Thirdly, antitrust will not be able to remedy most of the harm caused by non-dominant player in a particular market. Therefore, based on the assessment, only conduct with a detrimental effect on competition would be investigated, whereas conducts without interfering with competition process are irrelevant: such as gender discrimination would not be considered by the competition law enforcement.[76] Equally, the sole privacy breaches should not be seen as a parameter for protection competition structures. Hence, a debate is to ensure more pragmatism and less utilitarianism. Based on different case law, it is possible to ascertain that the shift will be possible on a case-by-case basis.[77] Once the conduct has been identified, the debate should focus on which conduct should be of importance to competition law regime, i.e. whether conduct should be seen as abusive, or not. Then, the assessment of competition processes should be conducted within these objectives. Therefore, it is capable to conclude that the objectives of protection of competition structures applied on normative value, which derives from the particular in question objective, makes the protection of competition law worthy.[78] A brief discussion on fairness and a concerns Although the article focuses only on the three key goals of competition law, the concept of fairness is necessary to enrich the above discussion on the protection of competition. The EU antitrust policy in many respect reflects on the Ordoliberal thinking, which perceives competition as demonstrating both economic and political powers,[79] affirming a role of States in keeping market open to competition, protecting a status quo of market equilibrium.[80] The political precondition, then, ensures that regulators take measurements to confirm a fair and democratic society. Yet, defining fairness is a laborious task, with a different concept of fairness recognisable in the context of different areas of law.[81] Within the meaning of competition law, fairness is ascertained into two subcategories: formal and substantial fairness,[82] with the former relating to the processes where the bias or discrimination is absent in resources’ allocation, considering the process of equal opportunities,[83] whereas the latter refers to the resources allocation outcomes, focusing on a fair allocation of the total surplus between consumers and producer.[84] If the competition law regime focused solely on fairness as competition law objective, its rules would prohibit undesirable social application of resources.[85] Consequently, competition law would become a mechanism to ensure the correct market outcomes. Yet, as Nazinni added, this ex-post function is foreign for competition law,[86] since the process of competition law protects the market structures from any competition constraint, ensuring that the resources' allocations remain fair. However, in the circumstances where it is no longer fair, the different social policies should become a means to address any distributional problems. Due to the abstract nature of fairness, the objective should serve as a guide, and not an enforcement benchmark.[87] Verstager noted that competition policy aimed at shaping a fair society, allowing a fair chance distributed to small business and individuals.[88] In this respect, it is likely that fairness, as an abstract phenomenon, would have not stood on its own, but acts as an important prerequisite in supporting against the monopolisation of large economic players. Fairness might, therefore, be entwined in the competitive process, and somehow guide the enforcement, reflecting on the consumer welfare and efficiency interpretation.[89] Economic reasoning might arguably be fused into the concept of fairness, as fairness based on ensuring legitimacy. Fairness might be seen as being a multidimensional aspect in competition law, as for example in the analysis of margin squeeze, it might acts as providing equal opportunities between competitors, as well as protecting consumers. Yet, fairness and protection of competition should not be confused: the fairness would not be used to challenge competition processes.[90] In the assessment of the privacy and fairness, there are varying perspectives of privacy recognised globally as to the level of data protection and the role of competition law in this context. Different conceptions of privacy might be recognised in various cultures and social systems or the consumers’ heterogeneity: some might value privacy less, whereas others much more.[91] Privacy protection has been debated as falling outside the scope of competition law enforcement. Yet, the proliferation of the data acquisition in the digital economy indicated that privacy and fairness and competition law might be potentially interconnected, especially when exploitative and exclusionary effects come into discussion, as per BKA’s Facebook case.[92] Although the concept of fairness acts as an abstract phenomenon to the normative value of the competition process[93] and protection of fair market outcomes, it crystallises the legitimate expectation of market participants. In this respect, the notion of fairness influences the structure of competition law, recognising that an economic agent cannot be prejudiced within the scope of competition law, from the disadvantaging objectives of the market. Hence, fairness might be decisive in the digital economy sphere, as its abstract norm guides the relationship between online platforms, consumers, and service providers. Fairness, yet, appears to demonstrate a multisided nature as supporting interventions of unfair market practices, discriminatory practices, as well as allows to justify intervention when misleading information might lead or facilitate distortion of competition. Arguably, this broad scope of fairness could also encompass data handling or privacy violation which could harm competition, as well as could play an important role when asymmetric information could distort competition. Fairness, however, convincingly shows that a large data acquisition could threaten fundamental civil rights and impact on the ability to participate in political life, leading to discrimination.[94] As discussed above, the proliferation of the data-oriented business models demonstrate a risk of different cyber incidents, including data breaches.[95] It might be tempting and interesting to consider these issues in the wider competition law spectrum. However, the protection of fundamental rights has been considered to be beyond the scope and application of competition law.[96] To demonstrate this efficiently, one might consider the example of the media plurality, which is seen as an important democracy outset.[97] On this assessment, one can consider the UK Competition and Markets Authority’s (CMA) investigation of the merger of Sky plc and 21st Century Fox.[98] Although the merger was cleared at the European level, the CMA assessed the context of public interests, including the broadcasting standards and media plurality objectives, arising from the merger.[99] The scope of the investigation demonstrated that there are a number of inferences from the scope of competition law. Primarily, the consideration was placed on the notion of media plurality as falling outside the scope of competition law, as otherwise the EU Commission would consider this notion in their investigation. Therefore, referring it back to the discussion on competition law, fairness and privacy concerns, the example of media plurality might act as closer to the enforcement of competition law, since any competition reduction might result in a reduction of media plurally, which technically creased imposition of unfairness, influencing negatively consumer welfare. The discussion about privacy concerns adds a further element. The analysis of the media plurality demonstrated that it is not a concern for competition law, but there is a potential indication of its connection with a number of competitors on the market, and impact on the consumer welfare. Applying this rationale to privacy protection, the considerations demonstrate that privacy protection relates to big data and big analysis. Therefore, the assessment is likely to consider different elements and how they might adversity affect consumers in making a reasonable choice. It is nevertheless apparent that privacy concerns might be way behind the remits of the conventional competition law assessment as focusing on quality and innovation. For example, in Facebook/WhatsApp,[100] the EU Commission claimed that privacy polities establish a non-price parameter of competition: a degradation of private policies affect aspects of product quality, or even amount to the product price increase.[101] Hence, it might be an indication that potentially privacy concerns might be seen as indirectly influencing competition law assessment. Additionally, the concept of fairness is linked to innovation, as fair competition ensures a better quality of technological services and products while aiming at the cost reduction, which then benefits consumers since they can benefit from a low cost and a high product’s quality.[102] Yet, the fusion of efficiency and fairness requires a certain act of value balancing. Specifically, the undertakings should not be seen as limited to the adoption of a norm-neutral economic approach, as bearing a risk of dissolution of EU competition law from its roots and norms, which include fairness.[103] Hence, the economic theory might act as a normative theory resolving any normative concerns, with non-efficiency objectives being expunged.[104] Such an approach could substitute democratic control with technocratic control.[105] The above considerations suggest that, although the content of fairness is included in the competition law enforcement and is potentially relevant in the privacy breach assessment by focusing on achieving a desirable outcome in the protection of competition structure, fairness is a competition law’s procedural matter and should not be focused extensively in the analysis of the competition law enforcement. The proof for this proposition is that competition law could become superfluous if focused on the surplus' allocation rather than focusing on the process of allocation of resources.[106] Additionally, even if competition law aims at the fair allocation of resources, it does not mean that all economic actors should be placed in the same position in particular transactions, but the fairness of equal opportunities to participate in the market should be offered. Yet, the fairness might not be a decisive normative standard of competition law, and its idea could only focus on fair wealth distribution. However, such a notion might be seen as being beyond the scope of competition law enforcement and different policies might be more suitable to achieve fairness. Hence, fairness should not be seen as a weapon to ensure that consumers are protected against a violent undertaking, the protection of the individuals’ rights as consumers and market participants is already protected by the data protection and consumer protection authorities. Lastly, fairness and equality of opportunities emphasise that dominant undertakings are not exploiting their superior efficiency, which could influence an unfair market entry. For instance, the acquisition of the large quantity of data might introduce competitive restraints in the form of high barriers to entry, which in hand introduce a poor competition in the digital market. Google/DoubleClick introduced several potential data-related competition restraints.[107] Firstly, online services might engage in anticompetitive data acquisition, taking a form of exclusionary agreements or prevention of data portability. Considering the exclusionary agreements, Google was alleged of intermediation agreements, which made Google become the exclusive search provider. Also, Google was alleged of entering into distribution agreements with software vendors, which exclusively use Google as their toolbars and web browsers. The anticompetitive spectrum on the Google issues demonstrates that exclusive agreements could exclude rivals, especially made by dominant firms. Furthermore, there is a potential element of vertical ‘single branding’ agreement establishment, which might result in anti-competitive foreclosure. In this respect, the action might prevent on the concept of freedom of choice as well as a competitive marketplace, which are key elements in the realisation of the democratic freedoms and other freedoms pursued by the EU, and the economic plurality might be hence an example of protecting wider policies, such as healthy policies. Therefore, the preservation of economic freedom could be a precondition for democracy, and as a result, safeguarding against regulatory or political capture.[108] In summary, the fairness of competition and market might influence the fairness of economic agents, devoting both consumers and sellers. Firstly, considering the limits of antitrust, it has been already widely noted that the privacy invasions and data breaches are increasingly presenting a danger to society. In theory, some of the competition enforcement might be capable of considering the increased consequences of commercial processing/collection of personal data. Yet, neither competition law nor economic analysis supports such an argument.[109] The concept of fairness cannot be ultimately an objective of competition law, as it is methodologically impossible to accurately define and apply the concept in practice. Yet, within competition law, as well as the digital economy (based on potential privacy breaches) might influence findings of anticompetitive behaviour. Yet, a competition law breach cannot be found merely in the lights of the free-standing concept of fairness. Social welfare objectives in the assessment of privacy concerns The aforementioned discussion on the protection of competition law structure could be further emphasised by the referenced to the scope of welfare objectives, with consumer welfare being the more recognisable one. As explained above, an effective competition process, which ensures economic freedom and market integration. These objectives would also be vital in the protection of competition equilibrium within the digital economy investigations. However, their scope and application might be limited due to ambiguity. Additionally, any personal protection breaches accumulated from the Big Analysis might demonstrate that protection of competition structure might lack a methodological ability to analyse the outcome of any Big Data/Big Analysis anticompetitive conducts. For example, the EU Commission in the merger case of Microsoft and Skype indicated that the fast-growing digital sector, which is often characterised by short innovation cycles, which might indicate that the large market shares could turn out to be ephemeral.[110] Hence, in this dynamic context, it was argued that the market share in itself might not be decisive in indicating the market power in itself and therefore might not be of lasting damage to competition law.[111] Hence, the problem is still real. The myopic nature of the GDPR indicates that the problem is not simply within the remits of consumer protection, but the level of possibility of competition law to intervene in the potential privacy breaches within the cases of an appearance of competition abuse. However, the problem should not be based on the further explanation of the value of competition law in the assessment of potential extension to privacy concerns, but it might indicate that the problem is structural, and the mere assessment of the protection of competition processes might not be omniscience. In this respect, it is logical to assume that protection of competition law structures might require a further goal. Hence, to answer this question it is logical to trade into consideration other economic arrangements that with competition might arrive with arrangements bringing societal benefits and are protected because of the increase not of welfare in the society. Since the competition regime is concerned with economic processes in society, it is necessary to also consider the aspect of competition as benefiting society.[112] However, it is necessary to add that the concepts of fairness or freedom are less not less important for competition law. However, its role often is minimal and they are only necessary for a wider picture of competition law goals, and on their own, they are not sufficient for the anticompetitive assessment, to mark which behaviour should be allowed or not under the competition law regime. In the attempt to move from the abstract form of protection of competition structures, by considering the sole aspects of freedom and fairness, the competition law assessment needs to consider more workable preservations. Equally, the concept of privacy is abstract, and its sole assessment might be outside the scope of any competition law assessments since its nature is mostly to connote a right devoted to individuals. In fact, the GDPR, which aims at protecting personal data of private end-users, lacks a proper definition of the theory of harm. In addition, the right devoted to data controller further emphasised a potentiality to strengthen their power as private gatekeepers. In this section, an emphasis placed on the concept of consumer welfare and its value in the privacy assessment concerns. Advocate General Kokott emphasised that protection of the market structures also indirectly protects consumers as any damage to the competition flow also impacts on consumers,[113] with the EU courts establishing that competition law aims at practises both damaging consumers and the structures of effective competition.[114] In the case of T-Mobile competition law was noted to be concerned with practice, regarded as having an anticompetitive object even if a direct connection between the practice and consumer prices is absent.[115] Furthermore, the case of TeliaSonera recognised a significance of preserving competition from possible distortion with a negative effect on public interests, individual undertakings and consumer, thereby, ensuring the EU wellbeing.[116] In this respect, in the case of Intel v Commission, the above reasoning was reiterated, indicating that, the Commission was not required to prove a causal link between data to consumers and practice in question since Article 102 TFEU aimed at remediating practices detrimental to consumer welfare and competition structure.[117] Yet, Daskalova pointed out that an exact meaning of a consumer has been still not sufficiently discussed in the competition law sphere, acknowledging that the exact welfare measurement has also been missed from the general discussion. In her discussion, unanswered competition law aspects were identified, namely: who are consumers? are they final or intermediate consumers? Could price be seen as the only measure in the competition law? And, what about the choice or equates domestic preferences of considerations?[118] Linking privacy protectionism to consumer welfare within the antitrust regime could be difficult. Primarily, privacy protection is a public right which falls within scope of specific regulation which does not necessarily result in consumer welfare analysis. Primarily, regulators would be forced to predict how to access the means in which new data or data sets would be used by undertakings, and how privacy, as a quality parameter, be affected. Furthermore, regulators would be required to determine any impact, or director of that impact on consumer welfare. Hence, potential changes to ‘privacy parameter’ could be approximated by any chances in amount of data acquired, or changed its use, or both. Yet, Privacy could introduce novel challenges to the consumer welfare’s sphere, with the debate fared up after BKA’s Facebook proceeding. Consequently, the changing economic landscape brings uncertainty to the nature of the competition pressures, with an emphasis being given on the normative scope of competition enforcement — mainly as to whether the EU competition law could be viewed as a societal norm also advancing the wealth. As noted above, the objective of Article 102 TFEU are necessary to ensure a healthy functioning of an internal market and, thereby, consumer welfare.[119] In this respect, the goals could reaffirm the equality of opportunity.[120] Hence, the use of asymmetric information might give rise to abuses which adversely impact consumers wellbeing and, hence, may require intervention. Furthermore, the notion of consumer welfare could provide a workable benchmark for intervention in digital markets, allowing to address any exploitative and/or exclusionary practices with the objective to restrict competition. Within the digital economy, the concept of consumer welfare might be used to tackle the effect of welfare on numerous groups of consumers. It can be effective in addressing multi-sided markets, which undoubtedly characterise digital markets. The Commission acknowledged that the notion of ‘consumers’ covered all direct and indirect, covered by an agreement, product users, incorporating producers, retailers, wholesalers and final consumers. Despite the deontological approach attracting in this context, the EU competition enforcement should be oriented on contributing to a fairer society,[121] as the objective of the market integration,[122] which is a key element of the EU foundation, accounts the consumer welfare too. Vestager referred to the importance of the fair market, claiming that competition enforcement pursued the objectives of fairness, for which the public authorities also to defend the interests of the consumers.[123] The competition amongst the undertakings relates to the price, wider choice of product, or better quality. As noted by a vertical merger of TeleAtlas/TomTom, which concerned about the market of digital database maps indicated that potentially the merger could improve the welfare of the consumers as the TomTom’s large consumer base would have improved the maps provided by TeleAtlas.[124] The application of consumer welfare is heterogeneous, as comprising all members of the society. In the digital market, the behavioural element would support an increase consumption of the users; consumers are likely to stay in the platform used by their family and friends, often unaware of maintaining competitive pricing because of their increased consumption.[125] Furthermore, considering a price-centric method to consumer welfare, a distorted picture might be provided. Clearly, the digital market usually provides ostensibly free for consumer services, and in this respect, quality forms an important parameter of competition. Bringing an example of the Facebook case, the distortion of privacy was seen as harming consumer welfare, despite the lack of price effects. Hence, the privacy might enforce a range of, not easily quantifiable, variables impacting on consumer welfare. Therefore, it is deducible that privacy concerns might not revolute the competition law itself, as the established competition law is adaptable to provide adequate remedies to bring a competitive equilibrium on a relevant market. However, it is important to note that competition is normative. What often one might witness is the refection on competition as a part of legal incentives and constraints and social, ethical, and moral norms. The assessment of any promising legislative approach to offer individuals’ greater control over their personal data might enhance the accountability of their power in negotiation. However, this approach not always offer a great response to any protection. The potential alternatives are as follow: (1) behavioural discrimination, witnessed by information which digital users witness while relying on digital services and products, to which they immediately select ‘accept all’,[126] or (2) the default privacy notices, which as per the case of Microsoft,[127] offer an omnibus privacy support. Hence, any potential incentives to create privacy by design might sound promising. However, users would always opt out for even a minimum of our data to be disclosed, as often the privacy notices on the sides would be disturbing to the equivalent of the advertisement. Generally, the protection of personal data at the EU level is offered by the GDPR, which aims at encouraging innovation and create opportunities at the European Digital Single Market.[128] Yet, the private regulators would have their power strengthened by the GDPR, as its features, including the right to data probability, offering a wider control over the data, might, in fact, provide only a short-term approach. The data has already been used to the processes of analysing it and the knowledge has been already applied for a greater grow of a particular digital platform. Equally, each element of data bears no value of the end-users who relies on the right to data portability. Hence, practically to engage in the sphere of informational asymmetry, an under-active consumer should have their enhanced discourse protected, as its negative dimension might impose negative externalities, wearing competition.[129] Nevertheless, the individuals’ welfare is an overarching objective of consumer law, data protection and competition law.[130] In terms of competition law, its cornerstone is to ensure undistorted competition within the internal market.[131] The application of EU competition law demonstrates a horizontal scope that is — competition law applies both to public entities which operate in the market and private, state-owned undertakings.[132] On the contrary, the data protection aims at safeguarding users’ fundamental rights and freedoms, without restricting the free movement of personal data.[133] Data protection and competition law are within the primary law of the EU legal regime; and similarly, to competition law, the data protection law regime is decentralised, i.e.. national supervisory bodies are the main enforcers (small point to note here: unlike competition law EU wide authority, there are not any equivalent for an EU-wide data protection authority. The consumer welfare might be noted by considering the concept of notice-and-consent scenario. According to Pasquale, the problematic relationship between privacy and competition law could amount to the ‘structural production if ignorance’, which characterise the ‘opt-in/opt-out’ scenarios, experienced by consumers as monopolistic.[134] On the contrary, other commentators aim to develop a connection between competition law and privacy, and have the case for a more holistic approach between these fields. With many differentiating visions of privacy and competition law, it is important to make the case for a more comprehensive vision. Once ascertained, the State and competition law authorities could development novel and nuanced orientations towards problems sources from the intersection between data and competition law, to deter and punish any unfair and harmful behaviour and improve market processes. It is admitted that the majority of consumers do not read privacy policies, since they are long, full of legal jargon and often unclear for users. As a result, consumers with an impaired understanding of the T&Cs, create digital self of their behaviours. Yet, their impaired understanding of the T&Cs result in the users having little confidence that they could detect any unfair or discriminatory conduct. In the age, when the users are expected to guard their data, consumers are lacking an understanding of the practices in which the platforms are using their data. Yet, many argue that there are normative rationalities for giving the users a chance to control over data, with privacy advocates attempting to solve any possible conflict.[135] Often, such advocates adopt a neoliberal model, recommending notice-and-consent policies.[136] Yet, there might be little of empirical evidence to support the current notice-and-consent framework as the favourable model for privacy protection. Correspondingly, the concept of privacy paradox apprehends the market failures in the digital economy.[137] The concept of privacy paradox refers to a phenomenon where users respect their privacy and demonstrate a broad need for broad data protection, whereas in practice they have no preferences.[138] Yet, two caveats of the notion are recognisable, which could result in markets failures. Primarily, users, wanting to protect their data, fail to act to take measures to protect their data; they often are too lazy to read the T&Cs, or they do not read carefully the privacy protections. Furthermore, users fail to understand what happens to their data, due to the lack of transparency and intelligibility. Interestingly, the issue in this argument lies with a lack of ability. Nevertheless, a debate as to whether the reform is needed is still present. For instance, the libertarian privacy establishment declaring that consumers’ preferences reveal for the privacy-invasive services.[139] Yet, analysing further this proposition, there is a likelihood of presenting an illogical rationale, since a simple statement that consumers are surging companies, including Facebook, out of conscious preference on privacy policies is difficult to be ascertained. Instead, users decide to use such platforms due to their personalisation of searches and social network services, which advantages from the acquired data to achieve near- or monopoly status. Given the complexity of their operation, consumers might never know the real value of privacy to their business models. Therefore, by essence, competition law relies on the economic parameters which allow to picture the consumer harm, such as by monitoring prices or possible reduction in input, quality and/or innovation.[140] Privacy considerations are left outside the competition assessment at the moment, due to the potential ambiguity in ascertaining its anticompetitive harm.[141] There are a number of different responses why data privacy should become a part of competition assessment. The following two approaches are widely discussed. Firstly, there is an overarching consensus that privacy is a fundamental right. Hence, competition law should be able to extend to a certain conducts, which might negatively impacted on this right.[142] Esayas claimed that this approach indicated that any mergers should be blocked by competition authority if they endanger individuals’ rights, unless the merging undertakings would implement any safeguarding privacy policies in place.[143] Furthermore, the following approach, according to Esayas, will not be based on purely competition concerns (including: price increase, output or quality).[144] Therefore, in longer terms, any mergers would be required to defeat unconquerable challenges. Secondly, any reduction in privacy protection affects the form of quality, consumer choice or diminishes innovation. This approach is both shared by the EU Commission and the US Federal Trade Commission.[145] Furthermore, this approach acknowledged competition law as being limited to competitive issues but postulates that privacy protection could form a competition dimension.[146] The requirement to consider privacy as a competition dimension is important in consideration of services offered at zero-price in exchange for personal data. However, this approach could have been further argued to show methodological concerns, since a circle of data procession by an undertaking would indicate that privacy breach is a mere by-product of Big Data’s Big Analysis. In this respect, it is likely to conclude that the long-term social welfare might be preferred to act as a guarantee of free competition, the efficient working of common markers, freedom of consumers and competitors as the main objectives of the competition law. Hence, long-term welfare might be theoretically superior to any other objective. The rich an extensive consumer view on the sphere of digital economy established a clear intensive to impose an instrumentalisation of competition law, with an effect of digital gatekeepers, which takes into consideration the simple aim of “protect[ion] [of] competition in the market as a means of enhancing consumer welfare and ensuring an efficient allocation of resources.”[147] Efficiencies and privacy concerns Efficiencies are another, frequently mentioned, goal of EU competition law.[148] The EU competition regime promotes economic efficiency, which is an ethos of neoclassical and neoliberal economics.[149] To this effect, efficiency considerations are entwined with consumer welfare promotion.[150] It is important to discuss the efficiency argument as a prerequisite in assessment of competition law from the perspective of privacy concerns in the antitrust cases.[151] This section aims at a brief assessment of efficiencies, to further emphasised the preferred long-term social welfare objective of the competition law, which could be a preferred objective of competition law in the privacy concerning dispute In this respect, any conduct that reduces market rivalry or hams the long-term social welfare should be deemed as unlawful. The discussion on efficiencies is thoughtfully enriching the above findings and are necessary for any further considerations of the social welfare long-term benefits. As a starting point, a brief discussion about the three components of economic efficiency is necessary. Firstly, a concept of allocative efficiency corresponds with situations where goods and service are allocated according to the price consumers are willing to pay, with the price never exceeding the productional marginal cost. Such efficiency is achieved under the phenomenon of perfect competition, as the market price cannot be affected by a producer reducing its output.[152] Allocative efficiency might be contradicted with allocative inefficiency, occurring when firms (with sufficient market power) influence prices by output reduction, resulting with marginal costs exceeding; any unilateral agreements or mergers with an incentive to increase the market power would contribute to allocative inefficiency. Furthermore, productive efficiency aims at the production of goods and services at the lowest possible cost. Any output is maximised by the most efficient inputs’ combination, which, in turns, means that in the production of the goods/services requires a minimum of society’s wealth.[153] Lastly, dynamic efficiency focuses on producers and requires their constant innovation and development of new products. This might be illustrated as a battle to gain market shares, by attracting new consumers. Competition legal regimes aim to promote innovation and economic efficiency by increasing productive and allocative efficiency. There is a broad consensus that the digital economy is a key driver to the future prosperity, which, unquestionably has revolutionised business models, services/products, and social interactions. Furthermore, it is also undisputed that the digital economy has introduced a new constraint in delivering innovation, efficiencies, and consumer welfare, as well as stimulated a dynamic on markets. The efficiencies of the business model of Facebook is based on a personalised advertising model, and according to the BKA, it does not outweigh the users’ interests during the processing of their personal data from outside Facebook sources.[154] The social network function would depend on the valorisation of data and its high degree of processing. In this respect, the T&Cs, with data acquisition in their cornerstone, demonstrates a considerable impact on social network functioning, as well as the welfare of consumers of the Internet. Yet, this argument could further impose an important point: is there a fine line between competition law and data protection law infringement? The EU Commission has rarely considered the efficiencies in itself. In the case of Microsoft/Yahoo!,[155] the Commission appeared to hint some efficiency arguments, arguing that to effectively compete against Google, the dominant search engine, the parties needed a larger scale. Nevertheless, there was not any direct mention of the efficiency by the EU Commission. However, as it will be noted, consumer welfare and efficiency might clash at the instances where the lower costs, caused by efficiency, are not directly passed on to consumers. In fact, within the digital economy, the products and services are offered to consumers for free, and consumer is not charged any positive price to use and access the digital services. Assessing the BKA’s Facebook case, the BKA provided a vague discussion on the efficiency assessment and indicated primarily that the assessment of Facebook misconduct qualifying the data protection breach was capable of being analysed through the competition law since it overemphasised the dominant position of the social network. Nevertheless, the Facebook case was decided solely on German law, and there is no equivalent on the EU legal level. Generally, competition law improves efficiencies. According to Schneider, there are two distinct debates: broad and narrow welfare standard of EU competition law.[156] The narrow welfare (or economic welfare) concentrates on productive efficiency, growth, market output and total welfare. In contrast, the broad welfare is understood to be an alternative/additional aim of competition law, which might encompass economic democracy, consumer welfare or density of the common market in a broad sense. Alternatively, there is a debate about non-efficiency and non-welfare factors. Yet, this could be potentially rejected as introducing further the debate as to why we do have competition law at all. Yet, often non-efficiency and non-welfare factors are used to further prove that competition law could be used as a political factor, which aims at, amongst others, reduction of poverty or welfare redistribution. Yet, on the other hand, non-welfare and non-efficiency factors might exclude several aspects of the competitive market. A key issue is what weight is given to particular efficiency standards: while economics consider social welfare,[157] EU competition law focuses on consumer welfare.[158] Yet, the economic efficiency is not the sole objective considered by enforcement authorities. Firstly, the EU competition law has a central objective of promoting economic integration between the different Member States.[159] The overarching goal of the EU was indeed a creation of the single market, where intra-Community trade barriers would have been abolished.[160] The case of Consten and Grundig pointed out that the integral market might have been compromised if an agreement between undertakings was designed to partition markets along national lines.[161] Yet, the analysis of Article 102 TFUE is potentially an area of competition law, where there is a least of economic theory applied. Geradin demonstrated that such an argument might be supported by the decisional practice of the Commission, which places an emphasis on application of per se prohibition to different conducts of dominant firms.[162] From a prism of the digital economy, the protection of economist structure might offer an independent mandate for intervention, detached from a direct effect on consumers. Yet, it does not necessarily have to result in more aggressive enforcement, but arguably more effective approach in the digital economy scope. In addition, there is a focus on the competitive process and its potential likelihood to be impacted by the use of networks, data pool as a potential expansion to raise rival’s costs or introduce barriers to entry. Hence, there is an increased significance of data in markets recognised due to its influence on competition distortion. The EU competition law is not limited to the above. It has been recognised that to ensure that the market functions properly, efficiency and innovation is also vital.[163] Although there has been a debate on the scope and measurement of gains of efficiency, which could take different approaches,[164] efficiency certainly plays a central role in the competitive assessments.[165] However, the question is how do role efficiencies impact privacy protection, if any? The theory of free digital services and products, which based their business model on data acquisition, efficiency could not be a focal point. The inherent efficiency nature might be somehow assessed in the case of Microsoft, concerning a tied Windows Media Player product to its operating system The line of Microsoft defence was based on an argument that trying two products resulted in a cost-saving since it was no longer required to set up a different channel for media player distribution. In this respect, customers would face a decreased price, as well as would spend less time on installing a media player channel. Yet, the EU Commission indicated that an argument on efficiency could be potentially irrelevant, as the software cost remains low and might be replicated by little effort. In this respect, the Commission focused on the different aspects, including innovation and consumer choice rather than the efficiencies. In respect, the usage of the free digital services and products might disseminate without any effort of the users. Hence, the aspects of efficiencies might be considerably playing a smaller role in cases involving privacy protection. Similarity, the BKA’s case proved that data processing is not necessary for efficiency.[166] To ensure a healthy market function, efficiency[167] and innovation are also vital.[168] The digital economy demonstrates a need for dynamic efficiencies (innovation), as allowing to stimulate dynamic markets, enhance consumer welfare while diminishing marginal returns. Innovation should not be ignored by the competition authorities, as it is unquestionably a key driver for competition and markets. Competition policy plays a vital role in fostering competition in innovation,[169] by safeguarding free market and efficiency maximisation. Then, the question on how to support innovation goes either to Arrowian or Schumpeterian assumption.[170] In simple terms, consumer welfare and efficiency might be interlinked, while considering the privacy concerns in the competition law assessment. Yet, with the EU Charter implementation, the EU Commission is bound to facilitate its provisions, including the privacy breaches.[171] However, in the form of being reluctant to intervene in the cases with direct harms to consumers in the form of excessive pricing, there are equally no reasons why the lower privacy available to end-users should be a means for the competition authorities to intervene.[172] The question should be therefore necessary indicative that the gap is not necessarily whether the competition law’s application is inadequate in assessing the privacy concerns, but the problem lies within the GDPR application as it is lacking an adequate regulation. The public policy should not be therefore based on the assessment of efficiency and competition since the competition law should not be extended beyond their natural limits. Yet, this point would be indicative that market forces, as well as competition law, are not adequate and sufficient to promote the level of privacy.[173] Conclusions The above discussion demonstrated that the debate of the relationship between privacy and competition law is more complex than the primary debate suspected. Big Data might indicate certain promises as well as risk in society. This corresponds with findings of that the literature on two-sided markets corresponds with the literature of network effects: this model appears to bring different market participants to the market, where normally they would not have interacted with each other. This debate has demonstrated that consumer welfare might be viewed as a favourable goal within the sphere of digital economy assessments. Yet, by the nature of EU competition law goals, this might not be a self-standing goal. EU Competition law goals are seen to be interlinked between each other and in their very nature aim at securing the competitive processes of the EU, and the goals of EU. The personal protection grated by the GDPR cannot be overstated, as by its key aim grants protection to consumers and digital users from any harm resulting from the unauthorised and/or excessive personal data use, protecting users from any potential negativity which could affect users’ dignity, which include different forms of discrimination (including price discrimination), identify theft, or harm to autonomy.[174] Essentially, the GDPR also ensures a balance between data controls and subjects, free flow of information and, at the same time, strengths the trust of the users that their data is handled with a reasonable expectation to ensure efficient maintenance of the market conditions, and realisation of the technological value. The problem between competition law and privacy might be amounting to the structural production of ignorance, which is only focused on the notice-and-consent privacy models, based on the opt-in/opt-out scenarios, which are used for a coercive monopolistic scenarios. The myopic focus on privacy as an efficiency gain might be just seen as a temporary, and for the long-term pathologies of corporate concentration, there are no sufficient means to protect the process of competition. Hence, the identified elements such as a notice-and-consent privacy regime in its first analysing might create only temporary efficiencies, which are further emphasised on the consumers' judgement to enter into a one-sided contract, over the reflections to optimise the data flow for the long terms interests of consumers. Simultaneously, the other side of the debate aims at the development of an interlinking relationship between competition law, which aims at developing holistic proximity between these fields. With several differentiating approaches to the privacy and competition law, it is important to focus on a more comprehensive vision, which develops a regulatory regime which develops a new orientation toward the process of competition law and privacy concerns and aims at detecting harmful behaviour and aims at market process improvement. Hence, it is evident that the further discussion would consider how the dominant digital undertakings, with the data orientated models, might be regulated, as the current regulatory regime is in itself limited in the digital gatekeepers. In this respect, potentially instrumentalisation of competition law might be legitimate, as witnessed by the telecoms instrumentalisation. The subsequent debate would be therefore aimed at analysing possible angles of regulatory intervention protection the processes of competition law, consumers, and the internal market in the age of digital era and include a potential scope for industrial policy measures. About the Author Arletta Gorecka is a Ph.D. in Law Candidate at the University of Strathclyde The opinions expressed in this article are those of the author. They do not purport to reflect the opinions or views of Indic Pacific Legal Research LLP or its members. References [1] Case B6-22/16 Facebook, Exploitative business terms pursuant to Section 19(1) GWB for inadequate data processing. Retrieved August 28, 2019 ; and the German Federal Court of Justice case (2020): Case KVR 69/19, Facebook v Bundeskartellamt accessed 24 June 2020; or at the EU level: Case. 38606 — AT.39740 Google Search (Shopping) [27 June 2017] [2] A Ezrachi, V Robertson, ‘Competition, Market Power and Third-Party Tracking’ [2018] World Comp: L&C Rev, 5,5. [3] EDPS, ‘On the coherent enforcement of fundamental rights in the age of big data’ EDPS, Opinion 8/2016 < accessed 22 July 2019 [4] World Economic Forum, ‘Personal Data: The Emergence of a New Asset Class’ (2011) < accessed 29 May 2020. [5] See, the argument of the European Data Protection Supervisor to include privacy and data related concerns into competition authorities’ investigations. EDPS, ‘Privacy and competitiveness in the age of big data: The interplay between data protection, competition law and consumer protection in the digital economy’ (2017) accessed 20 April 2020 [6] Carole Cadwallard, Emma Graham-Harrison, ‘Revealed: 50 million Facebook profiles harvested for Cambridge Analytica in major data breach’ (The Guardian, 17 March 2018) accessed 25 March 2020. [7] Consolidated Version of the Treaty on the Functioning of the European Union, 2008 OJ C 115/47, article 16. [8] Charter of Fundamental Rights of the European Union 2010 OJ C 83/02, article 8. [9] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). [10] GDPR (n 10), article 4(2). [11] The GDPR defines a person as either natural or legal person. Ibid, article 4(1) [12] Ibid, article 4(7) [13] Ibid, article 7, recitals 32, 33, 42, 43. [14] The data controller is obliged to inform data subject about the anticipated purpose of data processes (Recital 42) and informs about a right to with withdraw their consent at any time, as per Article 7(3) GDPR. The GDPR is based on an understanding that individuals must be comprehensively informed about the purpose of the data processing (Recital 42). Their versatile consent ought to cover all activities arising from data processing (Recital 32). In this respect, the consent has to be clear, concise and should not involve any unnecessary use of the service in question (Recital 32; similar conditions apply for the documents involving specification of data processing purposes, Article 7(2) and Recital 42). [15] Ibid, article 6(1)(a) [16] ibid, article 6(1)(b-f) [17] Facebook case (2019) (n 1) paras 778-780. [18] European Commission, ‘Guidelines on the Application of Article 81(3) of the Treaty’ [2004] OJ C101/97, para 13. See also: David J Gerber, ‘The Transformation of European Community Competition Law?’ [1994] Harvard Intl LJ 97, 102; European Community for Coal and Steel, 'Rapport Des Chefs De Delegation Aux Ministres Des Affaires Etrangeres' (Spaak Report) (1956). [19] ibid. [20] Case C-501/06 P GlaxoSmithKline Services Unlimited v Commission and Others [2009] ECR I-9291, para 63; Case C-8/08 T-Mobile Netherlands and Others [2009] ECR I-4529, paras 31, 36, 38-39; Council Regulation 1/2003 on the Implementation of the Rules on Competition Laid Down in Articles 81 and 82 of the Treaty [2003] OJ L1/1, Recital 9; European Commission, ‘Green Paper on Vertical Restraints in EC Competition Policy’ COM(96) 721, para 180. [21] Ariel Ezrachi, ‘Sponge’ [2016] J Antitrust Enforc 1, 18. [22] TFEU (n 8), article 9 refers to: ’the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.’ [23] ibid, art 12; Art 38 Charter of Fundamental Rights of the European Union [2016] OJ C 202/389 (hereinafter ‘the Charter’). [24] ibid, article 168(1); the Charter (n 138) article 35. [25] ibid, article 8. [26] The transport industry was exempted from EU competition law regime application by the Treaty of Rome. For further discussion see: Lars Gorton, ‘Air Transport and EC Competition Law’ [1997] Fordham Int'l LJ 602, 608. [27] Ford/Volkswagen (Case IV/33.814) Commission Decision 93/49/EEC [1993] OJ L 20/14, para 36. [28] TFEU (n 8) article 11; Charter (n 27), article 37; see also: Julian Nowag, Environmental Integration in Competition and Free-Movement Laws (Oxford University Press 2016) [29] Mark Scott, ‘Cambridge Analytica helped ‘cheat’ Brexit vote and US election, claims whistleblower’ (Politico, 27 March 2018) accessed 25 March 2020. [30] Renato Nazzini, The Foundations of European Union Competition Law: the Objectives and Principles of Article 102 (Oxford University Press 2009) 116; Consolidated Version of the Treaty on European Union, 2010 OJ C 83/01, article 3(3) [31] The abuse of dominance needs to take place within the internal market of the EU, as well as be identified between Member States. Such requirements are said to be purely jurisdictional threshold, and support in establishment of circumstances in which an abuse of dominant position becomes relevant under the EU law. ibid, 109. [32] For example, Merger Regulations and Guidance on the Enforcement of Article 102 use the term of ‘effective competition’ as opposed to the term ‘competition’. See: Commission, ‘Communication from the EU Commission — Guidance on the EU Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings’ (2009/C 45/02); Council Regulation (EC) 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (2004) OJ L24/1. [33] See: Eleanor Fox, ‘We protect competition, you protect competitors’ (2003) 26(2) W Comp 149. [34] Case C-95/04 British Airways plc v Commission [2007] ECR 1-2331, Opinion AG Kokott, para 68. [35] Case 6/72 Continental Can : Europemballage Corporation and Continental Can Co. Inc. v Commission [1973] CMLR 199 [36] British Airways (n 149) paras 103-108 [37] Eleanor Fox ‘We protect competition, you protect competitors’ (2003) 26(2) W.Comp. 149; R Bork The Antitrust Paradox: A Policy at war with itself (Free Press, New York 1978) 160. [38] David Gerber, Law and Competition in Twentieth-Century Europe, Protecting Prometheus (Oxford, Clarendon Press, 1998) 240 [39] Nederlandsche Banden Industrie Michelin NV v Commission of the European Communities (322/81) [1983] ECR 3461, para 57. [40] Consolidated version of the Treaty on the Functioning of the European Union Protocol (No 27) ON THE Internal Market and Competition. [41] TEU (n 145), article 3(3) [42] Guidance on the EU Commission's enforcement priorities in applying Article 82 (n 147). [43] Case AT.40428 Guess [44] See: AT.40424 Capcom or AT.40420 ZeniMax. [45] Case C-31/85 ETA Fabriques d'Ébauches [1985] ECR 3933 [46] Case AT.40527 Kuoni; Case AT.40525 TUI [47]Nazzini (n 151) 15 [48] Drystone Pipe & Steel Co v US 175 US 211 (1899) 15 [49] Nazzini (n 151) 15. [50] Ezrachi (n 137) [51] ibid 4-14. [52] Ezrachi (n 137) 17. [53] European Commission, ‘Antitrust: Commission fines Google €4.34 billion for illegal practices regarding Android mobile devices to strengthen dominance of Google's search engine’ (The European Commission, 18 July 2018 accessed 18 May 2020. [54] Ariel Ezrachi, ‘EU Competition Law Goals and The Digital Economy’ (2018) Oxford Legal Studies Research Paper No. 17/2018, 9. [55] IS Rubinstein, ‘Big Data: The End of Privacy or a New Beginning?’ [2013] Int Data Priv 74, 78. [56] Elias Deutscher, Stavros Makris ‘Exploring the Ordoliberal Paradigm: The Competition-Democracy Nexus’ [2016] Comp LRev 181 [57] E Garces, D Fanaras, ‘Antitrust, Privacy and Digital Platforms’ Use of Big Data: A Brief Overview’ [2018] Journal of the Antitrust and Unfair Competition law Section of the State Bar of California 23, 25. [58] See: R Nazzini, ‘Welfare Objective and Enforcement Standard in Competition Law’ in U Bernitz & A Ezrachi (eds) Private Labels, Brands and Competition Policy (OUP 2009). [59] Nazzini (n 151) 16. [60] Facebook/WhatsApp (n 34) [61] European Commission - Press release, 'Mergers: Commission approves acquisition of LinkedIn by Microsoft, subject to conditions', (IP/16/4284, 6 Dec 2016); Microsoft/Linkedin (n 36) [62] ibid. [63] Alessandro Acquisti, ‘Privacy and Market Failures: Three Reasons for Concern, and Three Reasons for Hope’ [2012] J on Telecomm & High Tech L 227, 227. [64] Economides, Lianos (n 112) 14. [65] Gene Kimmelman, Mark Cooper, ‘A Communications Oligopoly on Steroids—Why Antitrust Enforcement and Regulatory Oversight in Digital Communications Matter’ (equitablegrowth, 2017) accessed 3 May 2020. [66] European Commission, ‘Notice on the definition of relevant market for the purposes of Community competition law’ 97/C 372/03 [1997] OJ C372/5, para 2. [67] M Motta, Competition Policy (Cambridge University Press 2004) 102. [68] Aleksandra Gebicka, Andreas Heinemann, ‘Social Media & Competition Law’ [2014] World Competition 149, 158. [69] ibid 159. [70] V. Reding, ’The EU Data Protection Reform 2012: Making Europe the Standard Setter for Modern Data Protection Rules in the Digital Age – Innovation Conference Digital, Life, Design’ (Munich, 2012, SPEECH/12/26) accessed 19 March 2020. [71] Case AT.39740, Google Search (Shopping), decision of 27 June 2017 [72] ibid. [73] Damien Geradin, Monika Kuschewsky, ‘Competition Law and Personal Data : Preliminary Thoughts on a Complex Issue’ (2014) 37 World Competition 69. [74] Gebicka, Heinemann (n 183) 158 [75] For instance, users would have certain expectations from Google and any other vertical search engines to meet their behavioural expectations, considering the quality elements as an unavoidable feature. [76] Nazzini (n 151) 17. [77] Henrique Schneider, ‘From Deontology to Pragmatism: Dynamics in the Pursuit of Goals of Competition law’ [2017] CORE 245, 254. [78] Nazzini (n 151) 17. [79] M Dold, T Krieger, ‘The ideological use and abuse of Freiburg's ordoliberalism’ (2019) University of Freiburg Diskussionsbeiträge, No. 2019-04 [80] Christian Alhborn, Carten Grave, ‘Walter Eucken and Ordoliberalism: An Introduction from a Consumer Welfare Perspective’ (2006) 2 Competition Policy International, p. 199/200 [81] Nazinni uses the example as of fairness for consumer law and Article 6 of the ECHR context; Nazzini (n 151) 21-22. [82] ibid 22. [83] ibid 22; R Nozick, Anarchy,State,andUtopia (BasicBooks 1974); Case T-271/03 Deutsche Telekom AG v Commission [2008] ECR 11-47, for recognition of ‘equality of opportunities’. [84] See J Rawls, A Theory of Justice (Harvard University Press 1999). [85] Nazzini (n 151) 22 [86] ibid. [87] Ezratchi (2018) (n 169) 13. [88] European Commission, ‘Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions’ 2016 Annual Competition Report (COM(2017) 285) 2. [89] Case 27/76 United Brands v Commission [1978] ECR 207; Case C-177/16 Autortiesību un komunicēšanās konsultāciju aģentūra (AKKA)/ Latvijas Autoru apvienība (LAA) [2017] ECLI; Deutsche Post AG (Case COMP/C-1/36.915) Commission Decision 2001/892/EC [2001] OJ L331/40. [90] Case C-209/10 Post Danmark A/S v Konkurrencerådet ECLI:EU:C:2012:172, para 21: Article 102 does not ‘seek to ensure that competitors less efficient than the undertaking with the dominant position should remain on the market.’ [91] Tsai (n 12). [92] Facebook case (2019) (n 1). [93] European Commission, ‘Staff working document accompanying the Report on Competition Policy 2016’ SWD (2017) 175 final, 59. [94] F Bosco, N Creemers, V Ferasaris, D Guagnin & B Koops ‘Profiling: A persistent core issue of Data Protection and Privacy’ in S Gutwirth, R Leenes & P de Hert (eds) Reforming European Data Protection Law (Springer 2015) 10, 50. [95] See G Skoumu & L Leonard ‘On-line Behavioural Tracking: What may change after the Legal Reform on Personal Data Protection’ in S Gutwirth, R Leenes & P de Hert (eds) Reforming European Data Protection Law (Springer 2015) 45. [96] Data protection was noted to be outside competition law protection, see case of Asnef-Equifax (n 33). [97] The Office of Communications, ‘Measurement framework for media plurality: Ofcom’s advice to the Secretary of State for Culture, Media and Sport’ (Ofcom, 2015) < https://www.ofcom.org.uk/__data/assets/pdf_file/0024/84174/measurement_framework_for_media_plurality_st atement.pdf> accessed 14 June 2020. [98] ibid para 9. [99] ibid. [100] Facebook/WhatsApp (n 34) [101] Microsoft/LinkedIn (n 36) [102] Case C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I-7633, Opinion of AG Bot, para 245; Case C-203/08 Sporting Exchange [2010] ECR I-4695, Opinion of AG Bot, para 58. [103] Ezratchi (n 137). [104] ibid. [105] Harry First, Spencer Weber Waller, ‘Antitrust’s Democracy Deficit’ [2013] Fordham LRev 2543. [106] Nazzini (n 151) 22. [107] Google/DoubleClick (Case COMP/M.4731) Commission Decision [2008] OJ C184/10 [108] Elias Deutscher, Stavros Makris, ‘Exploring the Ordoliberal Paradigm: The Competition-Democracy Nexus’ [2016] Comp LRev 181. [109] Gene Kimmelman and Mark Cooper, ‘A Communications Oligopoly on Steroids—Why Antitrust Enforcement and Regulatory Oversight in Digital Communications Matter’. [110] Case no t-79/12, Cisco System Inc v Commission [December 11, 2013] 612 TJ 0079, para. 69. See also, Case No COMP/M.6281 - Microsoft/Skype [111] Cisco System Inc v Commission (n 225). [112] Motta (n 182) 17-22. [113] T-Mobile (n 135), Opinion of AG Kokott, para 71; GLK (n 135) para 63. [114] Case 6-72 Europemballage Corporation and Continental Can Company Inc. v Commission [1973] ECR-215, para 26; Case C-95/04 British Airways Plc v Commission Court of Justice, [2007] ECR I-2331, para 106; Case T-340/03 [115] T-Mobile (n 135), para 38. [116] Case C-52/09 TeliaSonera Sverige [2011] ECR I-527, para 22. [117] Case C-413/14 P Intel v Commission [2017] ECLI, para 105. [118] Victoria Daskalova, 'Consumer welfare in EU competition law: what is it (not) about?' [2015] The Competition Law Review 133, 133-135. [119] Deutsche Telekom AG v Commission (2010) C-280/08 [120] C-49/07 Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio, [2008] ECR I-4863 [121] A Lamadrid, ‘Competition law as Fairness’ [2017] JIPLP 147, 147-148. [122] Case C-468/06 Sot. Lélos Kai Sia v. GlaxoSmithKline [2008] ECR I-7139 [123] M Vestager, ‘Competition in a big data world’ DLD 16. < https:// ec.europa.eu/commission/2014-2019/vestager/announcements/competition-big-data-world_en> accessed 23 September 2019. [124] TomTom/Tele Atlas, Case No COMP/M.4854, Decision of 14.5.2008 [125] Arletta Gorecka, ‘Is "Privacy" a Means to Protect the Competition or Advance Objectives of Innovation and Consumer Welfare?’ in Maria Tzanou (ed) Personal Data Protection and Legal Developments in the European Union (IGI Global 2020), 119. [126] See Alex Chisholm, ‘Alex Chisholm Speaks about Online Platform Regulation.’ (2015) CMA accessed 14 March 2020 [127] Case T-201/04 Microsoft Corp. v Commission, Court of First Instance (September 17, 2007) [128] European Commission, ‘Agreement on Commission's EU data protection reform will boost Digital Single Market’ (Press release, 15 December 2015) accessed 9 May 2020. [129] Ariel Ezratchi, Maurice Stucke, Virtual Competition (Harvard University Press 2016) 226 [130] Orla Lynskey & Francisco Alves Da Costa Cabral, ‘Family Ties: The Intersection between Data Protection and Competition in EU Law’ [2017] Common Mkt L Rev 11, 21-22. [131] Christopher Decker, 'Concepts of the Consumer in Competition, Regulatory, and Consumer Protection Policies’ [2017] J Competition L & Econ 151, 156. [132] TFEU (n 8) article 106(1). [133] GDPR (n 10) articles 1(2) and (3). [134] Frank Pasquale, ‘Privacy, Antitrust, and Power’ [2013] Geo Mason L Rev 1009, 1011. [135] Pasquale (n 138) 1011. [136] FH Cate, V Mayer-Schongerger, 'Tomorrow’s Privacy: Notice and Consent in a World of Big Data’ [2013] Int’l Data Privacy L 67, 67-68. [137] Pasquale (n 138) 1011. [138] ibid 1012. [139] Paul Ohm, ‘Branding Privacy’ [2013] Minn L Rev 907, 984-985. [140] Kerber (n 39) 4 [141] See Gorecka (2020) 109 on the discussion of the path of data protection and competition law in the EU. [142] Complaint and Request for Injunction, ‘Request for Investigation and for Other Relief in the Matter of Google and DoubleClick’ [143] Data Privacy in European Merger Control: Critical Analysis of Commission Decisions Regarding Privacy as a Non-Price Competition Samson Esayas, European Competition Law Review, 40(4) (2019) pp. 166- 181 [144] ibid [145] Peter Swire, 'Submitted Testimony to the Federal Trade Commission Behavioural Advertising Town Hall on Google/DoubleClick', (2007). See EDPS Preliminary Opinion, ‘Privacy and Competitiveness in the Age of Big Data: The Interplay between Data Protection, Competition Law and Consumer Protection in the Digital Economy’ (2014). [146] Maurice Stucke and Allen Grunes, Big Data and Competition Policy (OUP, 2016); Kerber (n 39) 6. [147] R Whish, D Bailey Competition Law (7th edn, OUP 2012) 19 [148] Daniel Zimmer ‘On the normative foundations of competition law’ in Daniel Zimmer (ed) The Goals of Competition Law (Edward Elgar Publishing International 2012) 167. [149] Pasquale (n 254) 1011. [150] See, Neelie Kroes, ‘European Competition Policy – Delivering Better Markets and Better Choices’ (2005) Speech delivered at the European Consumer and Competition Day < https://goo.gl/3Fn75o> accessed 30 March 20202; Philip Lowe, ‘Preserving and Promoting Competition: A European Response’ (2006) Competition Policy Newsletter, May 2018. [151] Facebook case (2019) (n 1) 212. [152] Simon Bishop, David Walker, The Economics of EC Competition law — Concepts, Application and Measurements (2nd ed, Sweet & Maxwell 2002) 20-21. [153] Richard Whish, Competition Law (4th ed, Butterworths 2001) 3. [154] Facebook case (2019) (n 1) 271. [155] Case COMP/C-3/37.792 Microsoft, para 958, 969. [156] Schneider (n 192) [157] Bishop, Walker (n 273) 24. [158] ibid [159] Claus Dieter Elherman, ‘The Contribution of EC Competition Policy to the Single Market’ [1992] Common Market Law Review 257, 257. [160] TEU (n 145) article 3. [161] Cases 56 & 56/64, Consten and Grunding v Commission, [1966] ECR 299. [162]Geradin, Kuschewsky (n 188) [163] Guidance Paper (n 9), para 5. [164] Geradin, Kuschewsky (n 188) [165] Horizontal Mergers Guidelines (n 96), para 76 [166] Facebook case (2019) (n 1) 212 [167] Horizontal Mergers Guidelines (n 96), para 76; Geradin, Kuschewsky (n 188) 315. [168] Guidance on the EU Commission's enforcement priorities in applying Article 82 (n 147). [169] European Commission, ‘Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements’ [2011] OJ C 11/1, paras 119-122 [170] J Schumpeter, Capitalism, Socialism, and Democracy (George Allen & Unwin, 1954); KJ Arrow, ‘Welfare and the Allocation of Resources for Invention’ in R Nelson (ed) The Rate and Direction of Economic Activities: Economic and Social Factors (NBER Books 2016). [171] A Lamadid, 'On Privacy, Big Data and Competition Law (2/2) On the nature, goals, means and limitations of competition law’ (Chillin’Competition, 2014) < https://chillingcompetition.com/2014/06/06/on-privacy-big-data-and-competition-law-22-on-the-nature-goals-means-and-limitations-of-competition-law/> 6 July 2020. [172] ibid. [173] ibid [174] Alessandro Acquisiti, Curtis Taylor, Liad Wagman, ‘The Economics of Privacy’ [2016] Journal of Economic Literature 442.

Today, for the members of the AIM Leaders Council, we had some meaningful discussion on Algorithmic Ethics for Good Business in today's meetup. I had discussed about Being Lawyerly to Build Ethical AI for Business, which was central to the following important points: - Converging Legal and Business Concerns towards Explainable AI - From Audits & Compliance to Conflict and Innovation Management - #Data4Development and Consumer Law Innovations towards Explainable AI In this meet-up, I had joined Ananya Roy from Deloitte. Her points on algorithmic ethics were insightful, especially: - human-centric future of technologies taking Moore's Law into regard - human perception of outsourcing operations to AI and Algorithmic bias - algorithms and ethical ambiguity - explainable artificial intelligence and self-perpetuating cycles On #AIEthics, I had also discussed the implications of the Competition Commission of India's orders on Google, the recently released Digital Personal Data Protection Bill, transitioning from digital inclusion to digital mobility and economic-ethical tech innovations. In case anyone wishes to read through the presentation document for the meetup, please feel free to DM me. I thank members of Analytics India Magazine for the invite.

ChatGPT, a sibling model of InstructGPT, has gained much traction recently. With over 1 million users and their interactions with this interesting chat model, the user reactions have amazed discourses on education, public policy, lawyering and many other things. However, the model's success so far is not a pessimistic development when it comes to technology governance. Let's take it this way: there are such technological models, which are evolutionary from a technical aspect. Achieving the edge obviously may be backed by technology hype cycles. However, there is no doubt that ChatGPT is a unique innovation, considering their reinforcement learning algorithms. While people may claim that this piece of technology is capable to replace Google, the generic use cases of this technology depends. In fact, it wasn't long ago when Meta had produced an algorithmic system, Cicero, to predict discourses in diplomacy, which they claim to be in the realm of AI Diplomacy. It is known that Cicero has achieved extraordinary scores in the strategy game at webDiplomacy.net. That is praiseworthy, and if the system is analysed at best, a lot could be understood about its generic and non-generic use cases. This article is dedicated to analyse the use of reinforcement learning via ChatGPT, based on its use cases / distribution relevance, from a regulatory and policy perspective. The article also provides conclusive insights on where the trajectory of reinforcement learning, could invite regulatory oversight, with a sectoral focus. Reinforcement Learning at a Glance Reinforcement learning (RL) is a subset of machine learning practices which are followed by developers and data scientists across the globe. It has a special place in the field of artificial intelligence and law, due to its ubiquitous features. RL is a kind of machine learning method, where any AI system (subject to learning the environments of the relevant data subjects for a set of tasks to be achieved expectedly) are reinforced or exhorted in a pattern, in a specific environment to maximise their notion of cumulative rewards. This reminds us of behavioural economics, wherein earning cumulative rewards is essential for an agent to act in a pattern they are ought to be. Now, using reinforcement learning, it is much possible to create proper use cases for the agent to learn an optimal / nearly-optimal, policy that incentivises the "reward function" or other user-provided reinforcement signal that accumulates from the immediate rewards. The products / services discussed in this article, ChatGPT, Cicero and GitHub Copilot are inspired by or based on reinforcement learning. Looking at policy realities as they stand, RL can be subject to heavy supervision protocols, which may succeed or fail in building the AI system, accordingly. For example, in the case of State-Action-Reward-State-Action (SARSA) model, RL algorithms are subject to cumulative rewarding. Here, cumulative rewarding is experienced by the algorithm when it has to act in line with a policy statement, which represents a probable set of things to be achieved. This is natural to happen in any SARSA setup. However, In the case of Deep Q-networks (which also evolves at the level of neural networks), the RL algorithm has to learn and self-explore to develop those self-reflected "policy considerations" along with the existent RL techniques in place. In the next section, certain products or services developed through reinforcement learning are analysed, to estimate their impact, purpose and limitations, from a regulatory standpoint. Regulating Reinforcement Learning Regulations cannot curb innovation. However, we are at a tipping point in various D9 countries, where at the vicinity of the proliferation of recognisable and usable disruptive technologies, if governments deny or overlook the issues attached with these technologies, then it is concerning. We also understand that multiple classes of artificial intelligence technologies of socio-economic and socio-technical value, have to be observed carefully, with a sector-to-sector regulatory approach. Governments have already started developed generalised and some sector-specific regulatory methods, especially on recommendation algorithms, recognition services, predictive algorithms and other relevant tech products / services of relevant categories including analytics. RL is a unique case but to make it simple (unlike recommendation algorithms, where narrow regulatory outlooks might help), some entrant regulatory breakthroughs could be helpful. Let's discuss ChatGPT to understand its scope. ChatGPT's Omnipresent and Omnipotent Features ChatGPT is a perfect, relevant and evolving example of omnipresent and omnipotent AI technologies. Let's understand how it works, as explained by the OpenAI Team. The diagram is quite self-explanatory, so let us analyse a set of sub-steps in every step. As per Step 1, the reinforcement learning algorithms are put into extensive use. Then, the output behaviour, converted into data, is used to fine-tune GPT 3.5 with supervised learning. This is interesting because anyhow, you have to encapsulate the AI system's lookout amidst the data available to it. In Step 2, the reward model ranks the outputs received. Now, Step 3 is an advanced version of the first two steps, where supervised policy is used to initialise the PPO (Proximal Policy Optimisation) Model. Now, the reward models (RMs) as created in Step 2 calculate the reward as denoted in this diagram, to use PPO to update the policy for supervising the system. Now, in ChatGPT, as per a blog written on March 3, 2022 by OpenAI, Reinforcement Learning from Human Feedback (RLHF) creates a third layer of reinforcement learning to make ChatGPT according to OpenAI, more "safe and useful". Let us look at Figure 3, where we have provided an excerpt of an example of how the same question asked to InstructGPT and ChatGPT really work. Taking this question into reference, InstructGPT would give you a blunt response, as the text indicates. However, ChatGPT does the opposite and the response seems to be explorative. This by itself, is iterative deployment. They also have a difficult task ahead, which they have described in their note on Aligning Language Models to Follow Instructions: Right now, InstructGPT is trained to follow instructions in English; thus, it is biased towards the cultural values of English-speaking people. We are conducting research into understanding the differences and disagreements between labelers’ preferences so we can condition our models on the values of more specific populations. More generally, aligning model outputs to the values of specific humans introduces difficult choices with societal implications, and ultimately we must establish responsible, inclusive processes for making these decisions. Achieving parity with multiple specific human groups, as per group and individual notations, would be tough task, which is why some regulatory perspective must be gradually developed. Here is a reference to a paper published by OpenAI researchers in 2019 on The Role of Cooperation in Responsible AI Development (2019, p. 13): Features that affect the likelihood and severity of a collective action problem for responsible development can be used to decrease its likelihood and severity if they are are features that we can control. For example, fundamental distrust between companies is likely to worsen a collective action problem because companies are less likely to expect that their cooperation will be reciprocated (high trust). Building trust between AI companies can therefore decrease the severity of collective action problems. Since ChatGPT is omnipresent and omnipotent, there is no doubt that self-sufficient efforts have already started to make the service more human-centric. Perhaps regulators across the world may differ on their oversight approaches. For example, Europe may approach ChatGPT with a human rights approach, because their scholarship in the EU and the Council of Europe refer human-centric AI as some AI system which is risk-sensitive or acts in line with the human rights obligations that apply in Europe. The United States will take a proactively open approach to it, where some State-level positions across California, New York and other tech-sensitive states may be important to look out for. India might take a responsibility and risk-centric approach from the perspective of clarity to comply with Indian regulations and laws. China would be unambiguously restrictive while ASEAN member states and Japan may be risk-centric as per their own capabilities and concerns. In short, leaving the high-handed approach that Europe and China may take, ChatGPT is safe as of now. However, where ChatGPT may become critical to be studied is the phenomenon of artificial intelligence hype. AI Hype, is defined as per VLiGTA-TR-001, our report for the Vidhitsa Law Institute: An Artificial Intelligence hype cycle is perpetuated to influence or generate market perception in a real-time scenario such that a class of Artificial Intelligence technology as a product / service is used in a participatory or preparatory sense to influence or generate the hype cycle. Since ChatGPT has become popular and relevant for multiple use cases that are being proposed, the risk of artificial intelligence hype is not going away. For now, considering the efforts such as RLHF put into use by OpenAI, it may be inferred that the general principled use of ChatGPT, from a commercial-technical perspective is sound. The bi-products developed by the help of ChatGPT, would be interesting to notice, since a lot multi-sector products and services would necessitate a different approach of self-regulation that OpenAI may have to opt for in future. DoNotPay is a recent example to ponder upon. Here is a tweet from Joshua Browder from DoNotPay: Let us take an example provided by Joshua Browder from DoNotPay about ChatGPT's use to develop legal statements: Joshua claims that ChatGPT may "replace lawyers". However, at least with limited accuracy, ChatGPT may ease a lot of legal statement drafting work, for normal issues for a lot of people. So, we had also tried out a few samples with ChatGPT to draft petitions. Nevertheless, if you read the responses by ChatGPT, some people may consider that these draft petitions are infallible and useful for their "daily" use. Anyways, that is not pragmatic because context-based analysis cannot be limited or crystallised so easily. Real use cases are far more complicated to handle. Plus, ChatGPT also challenges the element of trust in-built with human environments. Now, let us say that for any bi-product, you make some use of ChatGPT, obviously like it is in the case of Consumer Experience-based AI, you focus on technologically rendered experiences of exploration that the AI system offers. Whether it downgrades the economic necessity of human-involved trust is debatable, since the use of ChatGPT is yet to proliferate to even show any use cases, which has not been the case for now. It does not mean the system is to be discouraged. We can say that ChatGPT must be treated, as a quicker alternative to optimise exploration of knowledge, information, facts, anecdata and insights. That explorative involvement may differ with every use case, of macro and micro purposes. There is another issue with explorative involvement. Exploring something does not imply you know in an all-comprehensive manner about a subject-matter. ChatGPT is capable to give explanations but sometimes makes errors which could be referred to as "gaslighting" facts and anecdata in a jumbled and unclear manner. In fact, contrary to popular notion, ChatGPT may force the users to understand the basics of any explored knowledge, information, fact, anecdata or insight manually. If you as a user are aware of concepts and notions related to a subject-matter at a conciliable level, ChatGPT may be insightful for you to analyse and relook at your explorative involvement to find answers. However, the element of trust could be shaky, when it comes to information flow and economy, while using ChatGPT. Conclusion ChatGPT is a lucrative RL-based service which could be helpful to embrace sociotechnical mobility in some way. Like the algorithms run by various social media companies which have become general, bloated and omnipotent in use, ChatGPT's potential bi-products may become omnipotent and omnipresent as well, accordingly. A preliminary outlook could be needed since information warfare and overload, are critical problems for the knowledge societies that thrive in the digital world. How would ChatGPT affect the interconnected vulnerabilities attached with digital public and private products, is too crucial to ignore. In addition, the impact of ChatGPT on digital public infrastructure could be very necessary to look out for, in the future.

Introduction The relationship between plagiarism and art can be said to date back to the Roman Empire in 300 B.C, wherein the Roman elites were fascinated by the wealth and culture of Greek cities and demanded works of art which had semblance to Greek culture[1]. To match this demand Greek and Roman artists started making plaster moulds of famous Greek statues filling them with bronze and shipping them to Roman cities where they could be replicated in marble[2]. In the years that followed, things such as relics and artifacts also fell prey to the malpractice of forgery and plagiarism which lead to an increase in the rigour of authentication that was carried out to test the veracity of such art works[3]. In recent times however, the quality of these forged artworks has become so good that at times even esteemed auction houses such as Christie’s and Sotheby’s were unable to identify the real from the fake. One of such incidents took place in the 2000’s when both the auction houses received the same painting, Paul Gaugin’s Vase de Fleurs[4], an expert was later employed who was able to identify the real Gaugin from the forgery. In fact, now after an increase of such incidents Sotheby’s have hired an in-house art forgery expert who scrutinises the paintings before they are listed for auction[5]. Another important example with respect to plagiarism and paintings is the Mona Lisa, which has at least a dozen well-made copies and only the one which is displayed at the Louvre is quoted to be the original one[6]. Moreover, while the original Mona Lisa is actually valued at $834 million, a first-rate copy of the Mona Lisa was recently sold at an auction for $3.4 million[7]. The above quoted examples highlight two very crucial points, the first being that forgery in the world of art has been a common a practice but when it comes to physical art esteemed auctioneer’s like Sotheby’s have set up an internal mechanism to combat this malpractice[8]. The second point being that the monumental disparity in prices of the fake and the real Mona Lisa highlights the importance of ‘authenticity’ in the evaluation of art. A duo of researchers at Yale University Newman and Bloom in their research concluded that the value of art stems from the creative performance and the degree of physical contact with the original artist[9]. In other words, the artwork would be of a lesser value if it is identified as a forgery because then not only it would have no degree of physical contact with the original artist, but it wouldn’t have been created by the original artist in the first place[10]. Digital art even though being a relatively recent form of art in comparison to physical art, was also plagued by the same infirmities of plagiarism and forgery and unlike in physical art where methods have been developed to tell apart the real from fake, such a thing was almost impossible with respect to digital art unless the artist was able to procure a copyright in relation to the said art[11]. However, NFT’s have sparked a major revolution in the field of digital art and have resulted in exponential growth in the digital art market. As of September 2022, the NFT market has risen to $841 million. The inherent design structure of an NFT being minted on a blockchain based on a distributed ledger (DLT), gives it the characteristics of being timestamped, immutable and traceable have turned it into a valid of certification. In the case of digital art, the NFT is essentially being linked to that digital art and being used as a certificate validating the purchase of an online asset. Not only does this act as a certificate of ownership but also offers traceability because each NFT transaction is recorded on the DLT and now a customer who is buying the NFT can conduct their own due diligence by surveying the ledger and verifying the provenance of the digital art they want to purchase[12]. For the digital artists it also provides other benefits like royalty sharing via smart contracts, access to larger markets and reduction of intermediaries. Royalty sharing is essentially enabled through smart contracts which enable to automatic pay outs to the author on secondary sale of the NFT[13]. The royalty sharing requirements are encoded into a smart contract on the blockchain and are executed automatically when a transaction takes place[14]. NFT’s have also enabled the formulation of NFT marketplaces which are breaking the glass wall between famous and budding artists. Earlier only established artists would have had the opportunity to display their art in galleries and command an audience, and the smaller artists were limited to their social media accounts or other lesser visible platforms to display their art. But now with the help of these online marketplaces the middlemen which were needed to display an artists art work have been cut off and any art work is essentially the exhibited to the innumerable customers who log into these online market places. Issues with the present regime Despite all the new avenues that an NFT has opened for digital artists and the advantages that it provides, not all is merry in the land of NFT’s and there are still some grouses which the current structure of NFT’s seems unable to resolve. Firstly, NFT is often mistaken by its buyers as a certificate of ownership or a certificate of copyright transfer which is certainly not true in every case. In a usual smart contract involving an NFT just the right of personal use of that NFT is transferred and 100% ownership and other intellectual property rights remain with the original creator of the NFT, in fact such contracts are pari materia to when one buys a physical artwork[15][16]. A decentralised organisation called Spice DAO fell prey to this error when they bid $3 million on the NFT of the best-seller novel ‘Dune’, they were unaware that they had just purchased a digital copy of the book and not the rights to the book itself[17]. Molly White who’s a software engineer very succinctly elaborates on the issue and explains that when someone buys an NFT, “They've paid to have their wallet address etched into a database alongside a pointer to something. I wouldn't say they really ‘own’ anything at all.[18]” However, in certain cases NFT’s do transfer the ownership and the copyright only if the owner has programmed them to for example, in the case of Nike where they sold an NFT of virtual sneakers for $130,000[19]. Hence, unless the underlying conditions of an NFT specifically state that about the rights which are being assigned to the purchaser of such NFT, the customer shouldn’t assume otherwise. There still persists an active risk of fraud even after the creator of a digital artwork mints an NFT assigned to it. Theoretically multiple blockchains such as Solana, Binance Smart Chain, Cardano, Tezos etc allow for NFT’s to be minted on them and one can also mint an NFT again on the very same blockchain. This leaves room for scamsters to mint digital artworks of other creators and then presenting them on marketplaces as their own. Even though marketplaces like opensea.io and rarible on their websites promise to reduce fake NFT’s being uploaded, however, whether that promise translates to practice is a completely different story. An artist by the name of Aja Trier claims to have her art stolen and published 86,000 times and listed Opensea,io, these counterfeit NFT’s were only removed after she was able to garner social media traction about the issue. Opensea.io in their own report stated that over 80% of the artwork which was listed on their marketplace was either plagiarised or spam. Opensea.io in an attempt to reduce plagiarised artwork on their website limited the number of free listings that an artist can do on their platform but later had to take down this reform due to backlash by the artists. In the case of another digital artist Mary Campbell, she had her art minted into an NFT and listed on Rarible (which is a digital marketplace) by an unknown person[20]. An important detail in her case was that she had not minted a NFT of any of her artwork while this incident took place. The said person took a screenshot of her art created an NFT assigned to it and listed it for bidding at a starting price of $1200. The said person was later identified, and the listing was taken down. Campbell also reported the incident to Rarible but did not hear back from them. It can be inferred from the aforesaid cases, that these marketplaces are failing to undertake the requisite due diligence measures to verify the authenticity of the digital artwork which they list for sale. And from the cases of Aja Trier and Mary Campbell it is also highlighted that these marketplaces act dumb towards the concerns of digital artists and unlike art distributors or auctioneers instead of conducting the required authenticity checks before listing the digital artwork, have made the process of authentication an extrinsic task. They essentially leave it for the artist themselves to follow up on the authentication process in case a contingency arises[21]. Moreover, artists like Mary Campbell who are oblivious to such NFT marketplaces are more at risk of being exploited. And lastly the most major issue with respect to NFT’s is the legal ambiguities surrounding the technology. In many countries the tax liability in relation to income generated from digital assets has not been set and they are yet to come up with guidelines. Another issue is the legal validity of blockchain and smart contracts, for example in a country like India the validity of blockchain still hangs in the balance after the Supreme Court judgment which overturned the RBI order banning the use of crypto currency by Banks[22]. Furthermore, the Finance Ministry of India also made a statement that it is not planning a complete ban on cryptocurrencies and will allow windows for people to conduct experiments[23]. The law in countries like India and Indonesia is also silent on authentication and settlement of contracts which are a formulation of computer code[24]. The legal enforceability of smart contracts is also brought into question as they need to adapt to current legal contract frameworks across many jurisdictions[25]. Blockchain and smart contracts are the fundamental technologies which are needed to enable NFT’s to function the fact that there is legal uncertainties present in relation to them, casts of a big cloud over the future of NFT’s themselves. Conclusion Despite the aforesaid concerns it can’t be denied that the forthcoming of NFT’s has managed to turn a leaf for the digital artists and provided with a new source of income which they could never have imagined before. NFT’s have accomplished in provided much needed regulation and authentication to an otherwise unregulated art space and lead to the rise of a completely novel digital marketplace. Nevertheless, there is still major ground left to cover. The main reason why NFT’s were said to be beneficial for the world digital arts was their ability to provide time stamped, immutable and traceable data, but as has been clearly enumerated in the examples presented in this reflection paper, such attributes are failing to provide ‘authenticity’ to the digital artwork due to the inefficiencies of the NFT marketplaces. Hence, it becomes extremely crucial for those digital marketplaces that they bring in rigorous security measures to curb the spread of fake digital artwork on their platform, so that the nascent trust in realm of digital art can be maintained and nurtured. This trust would not only have to be fostered in relation to digital artists but also in relation to the consumers of such digital art. The platforms should also ensure the consumers clarity on the kind of rights that would accompany an NFT purchase, so that they don’t feel cheated and as a consequence demotivated to participate in the market again. A fledgling market can only flourish if all its stakeholders have something to gain by participating in it, which is why all its participants should strive towards creating a fair market, as this would help in achieving the twin of objective of kindling newfound demand and having a higher chance of obtaining legal sanction. References [1] Department of Greek and Roman Art, ‘Roman Copies of Greek Statues | Essay | The Metropolitan Museum of Art | Heilbrunn Timeline of Art History’ (The Met’s Heilbrunn Timeline of Art History) accessed 7 November 2022. [2] Id. [3] T. Lenain, Art Forgery The History of a Modern Obsession (Reaktion Books, 1st ed., 2011). [4] G. Newman, P. Bloom, 'Art and Authenticity: The Importance of Originals in Judgments of Value' (2011) Journal of Experimental Psychology . [5] S. Subramanian, 'How to spot a perfect fake: the world’s top art forgery detective' (The Guardian, 2018) accessed October 7, 2022. [6] ‘Forgery - Forgery in the Visual Arts’ (Britannica) accessed 7 November 2022. [7] Graison Dangor, ‘Fake “Mona Lisa” Sells For $3.4 Million' (Forbes, 18 June 2021) accessed 7 November 2022. [8] ‘Sotheby’s Hires Scientist, Addressing Art Market Wariness of Forgeries Post-Knoedler’, (Observer, 8 December 2016) accessed October 7, 2022. [9] Id. [10] Id. [11] ‘Are NFTs Worth the Hype?’ (The Economist, 3 February 2022) accessed 7 November 2022. [12] A. D. Popescu, 'Non-Fungible Tokens (NFT)—Innovation beyond the craze. 5th International Conference on innovation in Business, Economics & Marketing Research' (ResearchGate, 2021). . [13] Alex W Gomezz, ‘NFT Royalties: What Are They and How Do They Work?’ (Cyber Scrilla) accessed 7 November 2022. [14] Id. [15] Robert Goulder, ‘NFTs: The Basics And How To Tax Them’ (Forbes, 15 July 2022) accessed 7 November 2022. [16] Rishubh Agarwal, ‘NFTs: A Boon for Independent Artists or an “Ecological Nightmare Pyramid Scheme”’, (IPR Law India - Indian IP Law Resources, 24 February 2022) . [17] Baisakhi Mishra, ‘NFT Group Bought Dune for $3.04 Million Thinking It Was the Copyright’, (TechStory, 18 January 2022) . [18] Eric Ravenscraft, ‘NFTs Don’t Work the Way You Might Think They Do’ (Wired) accessed 7 November 2022. [19] Daniel Van Boom, ‘These Nike NFT “Cryptokicks” Sneakers Sold For $130K’ (CNET) accessed 7 November 2022. [20] Madelyn Alexander, ‘Digital Art Fraud Made Easy with NFTs’, (The Alabamian, 7 February 2022), accessed 7 November 2022. [21] Will Gottsegen, ‘NFT Forgeries Aren’t Going Away’ (Coindesk, 20 December 2021) accessed 7 November 2022. [22] 2020 SCC Online SC 275 [23] ‘Non-Fungible Tokens: Examining Its Legal Validity in India’ (NLUJ Law Review, 18 June 2021) . [24] Asia Law Journal, ‘NFT Regulations in India and Indonesia’ (Law.asia, 1 December 2021) accessed 7 November 2022. [25] M. Giancaspro, 'Is a ‘smart contract’ really a smart idea? Insights from a legal perspective' (2017) 33(6) Computer Law & Security Review, 825–835.

Digital technologies for sure are disruptive, and their potential to bring these unending changes, to be called as "disruptions" happen in threads. This means that even minute and subtle changes into any sub-segment of a class of technology's subset, can affect global markets at a considerable rate. Some disruptions may be considered natural and gradual, while some might be orchestrated to affect multiple sectors. Let us take a simple example. People may be aware of various kinds of IoT-based devices, which include sensors. Take an electric toothbrush. What are the factors or considerations that may surround the purpose of such a product? So, a commonsensical understanding says that the product is portable, the tracking system within the product provides a lot of data about the consumers who are using the toothbrush. If the toothbrush has some components that can also assess the condition of the teeth and the gums, then even that can be monetised and reduced into data. The understanding is this: when digital technologies cause disruption, it is obvious that the multi-sector, multi-circumstantial impact the disruption brings resembles interconnectedness. This is interesting because lawyers and policy thinkers rarely focus on the interconnectedness of technologies. Now, in the same case of the electric toothbrush, let us suppose you get the data and use algorithms to analyse the patterns, then the whole "responsible AI" paradigm comes in where you have to be compliant with some self-regulatory standards or a regulatory sandbox to assess the effectiveness of the algorithms. Then, the explainability of the algorithms also has to be checked because that determines the business model behind selling and manufacturing the electric toothbrushes beyond consumer law issues. Since, many technology companies who use AI technologies have to address such peculiar and interesting issues, oversight and regulation has become the buzzword. It depends how you use materialise either of them. You can involve the government to act as a regulator or create one, or you may have associations and bodies that can bring the bargain of multiple players on the table for consultation. Auditing and sandbox measures also can be used wisely. Alternatively, companies within their structure or a group of companies among themselves may create consultative or enforcing panels which can act in a "regulatory" fashion to conduct oversight. Recently, some trends have emerged among Twitter, TikTok, Meta and other technology companies, which affect the regulatory landscape in India, Europe and the United States. Taking a dive into the regulatory systems of the EU, China, the US and India, this article analyses the legal workability and fungibility of technology oversight and regulation within the big tech companies and the "Red Tech" (technology companies which are Chinese entities considering aspects of ownership). Regulatory Sovereignty: Recalibrations in the Global North & Reinventing Norms in the Global South Now, there is no generic dichotomy among major countries on this assertion that governments cannot leave technology companies, especially MNCs like Meta, Bytedance and others astray, and some regulatory systems need to be built and enforced, in the fashion that governments and stakeholders would be comfortable with. India is a special case where the government and the stakeholders are proposing unique technology governance models as we see the upcoming G20 Presidency in 2023. The European Union is building sophisticated regulatory frameworks beyond the GDPR already, while the Digital Markets Act is already in force. Anu Bradford has argued the rationale behind the EU's stringent approach to digital governance regulations and legal instruments (such as GDPR, for example) in The Brussels Effect: How the European Union Rules the World (p.140-41): While these internal motivations to integrate the European market provided the initial impetus for regulating data privacy, the EU’s current regulatory pursuits are also shaped by external motivations. Given the global nature of data processing and the importance of cross-border transfer of data—not just within the EU but across global markets—the EU has recognized the importance of promoting international standards for the protection of personal data. With the GDPR, the EU is thus also seeking to contribute to set the global standard on data privacy with other like-minded countries, cognizant that “if we do not shape standards now, others do,” emphasizing also that those alternative global standards that may emerge may be less desirable in requiring data localization, or leveraging data protection for censorship and state surveillance. [...] Foreign governments, companies, and business groups engaged in active lobbying to mitigate the costs of GDPR on their businesses. The US government was particularly active, opposing the regulation on the grounds that it would kill innovation and research, in addition to hindering national security cooperation. [...] Marketplace discourse is amenable to the idea that an individual consumer can trade his or her commodity—personal data—without strict oversight by public institutions. In contrast, EU institutions assume a strong role in the rights discourse where they have a central role in safeguarding the fundamental rights of its citizens. Alex Turk has described the distinctions between the United States and EU in a similar vein, noting how personal data is viewed as “tradable commodity” in the United States while considered “attributes of our personalities” in the EU. Now, compare this with India's vision of technology and data governance, in the realm of "good" digital public infrastructure (DPI). The larger focus of the Government of India is to build centralised initiatives and systems to safeguard and utilise citizen identity in the digital realm for their welfare and accessibility. Considering the classification of India 1, India 2 and India 3 made in the case of consumers across the country, it is clear that for this decade, the Government is doubling down on accessibility and inclusion in the digital realm, through simplified digital governance measures and promoting technology companies & start-ups (with its own bureaucracy-level features and pitfalls, which are natural when risks are undertaken for good). An article published on DPI by Observer Research Foundation entitled Creating ‘Good’ Digital Public Infrastructure explains this core aspect of Indian technology governance: DPI set up in areas critical to the functioning of an economy must be able to accommodate any unexpected increase in demand in the number of transactions or users, and also be able to respond to the evolving needs of a large and diverse set of users. Promoting and mainstreaming the use of open technologies—such as open-source software, and application programming interfaces and protocols, where anyone is free to access, use and share code—can be useful as they encourage collaboration and distribute the ability to solve population-scale challenges. [...] The technological and legal features of open technologies help governments avoid vendor lock-ins and, consequently, lower the costs of switching between vendors of proprietary software. The adaptability of open technologies is also useful in creating customised solutions tailored to local contexts. In other words, open technologies are a key enabler of citizen-centric innovation. If we take India and the European Union into perspective, it is determinant that both the actors have a citizen-sensitive and conscious ethic behind building facets of digital governance. The difference lies in this: Europe will focus on sophisticated regulations (which even India would need sooner than later) while India would embrace building optimal systems which redefine many aspects of digital inclusion, especially for countries in the Global South. When we analyse the recent orders passed by the Competition Commission of India against Google on OEMs and online payments, it seems apparent that the Government intends to reshape certain first principle points and methods towards shaping digital governance before they develop sophisticated regulations at a statutory level. The approach is rational because in general, India's rule of law and natural justice paradigms are not interpreted nor enforced with a proper sense at the district level. For example, the Section 66A of the Information Technology Act, 2000, which was struck down by the Supreme Court of India in the infamous Shreya Singhal case, was still used to prosecute individuals at the state level. Now, let us compare the US with the EU here for some perspective. When the Digital Markets Act came into being, the US Chamber of Commerce (USCC) expressed displeasure with the Biden Administration providing specific points of disagreement over the enforcing potential of the EU legislation. Sean Hather, the Senior Vice President of USCC explains the same in an article, whose excerpt has been provided therein: In reality, some of the concerns raised by the Biden Administration on the DMA are sensible. This also shows that sophisticated tendencies over technology regulation, could be expressly stringent, and their practicality may be affected. The European Union has to be sensitive and adaptive with a sector-to-sector approach to shape the paradigms of technology regulation. This is where the maximalist scope and tendency of regulatory systems must be rationed for good. This also shows that leaving countries like India, Singapore, Japan, Israel, the United Arab Emirates, Saudi Arabia and related countries, regulatory tendencies are acting in a maximalist fashion, which may yield some results. However, Europe's approach creates some dysfunction in their regulatory capacity, which could indirectly affect markets in the United States and even India. This comes in when big technology companies based out of the United States and China are found responsible for anti-competitive practices. When the expectations of a regulator are maximalist or impractical, it is apparent that major corporate players may hedge the turmoil and impossibility that comes with those expectations to shape their ways. In the next section, it is discussed how certain major big technology companies are shaping regulation and oversight paradigms. The Big Tech & the Red Tech Let us form some proper context here. The term Big Tech refers to technology companies in the West, including the FAAMG companies. The term Red Tech refers to several Chinese technology companies or technology companies owned by Chinese entities, public and private. When technology companies of the Global North are taken into perspective, we understand that at least despite their intervening and curbing tendency, at least there is a passive case to develop consultative and dispute resolution measures to resolve better sophisticated global legal norms and compliance methods. In the case of Red Tech, the paradigm is dissimulated and uncertain, due to the techno-economic relations among the US and Chinese business communities. Similar may be said when it comes to Indian and Chinese business communities, be it investors, technology companies, facilitators etc. From a legal perspective, the United States is different from China in adopting regulatory oversight wherein their regulatory landscape is still flexible and consultative. In the case of China, the approach is becoming protectionist, thereby an effort to decouple the impact of technology and finance ecosystems in the United States. For sure, China can do that in stealth mode to avoid risks easily and build economic resilience. However, the legal purpose of their regulatory visions is blurring day by day. A certain set of provisions in the Cybersecurity Law of China reflect the same tendency: Article 28: Network operators shall provide technical support and assistance to public security organs and national security organs that are safeguarding national security and investigating criminal activities in accordance with the law. Article 37: Critical information infrastructure operators that gather or produce personal information or important data during operations within the mainland territory of the People’s Republic of China, shall store it within mainland China. Where due to business requirements it is truly necessary to provide it outside the mainland, they shall follow the measures jointly formulated by the State cybersecurity and informatization departments and the relevant departments of the State Council to conduct a security assessment; where laws and administrative regulations provide otherwise, follow those provisions. Here is an excerpt from the Regulations on the Management of Security Vulnerabilities of Network Products approved by the Ministry of Industry and Information Technology in China, giving a clearly dissimulated outlook towards regulation and oversight. This is where the Chinese model could get counterproductive when their regulatory landscape is dissimulated enough to become complicated. The US and Europe are stuck with the economic risks attached to the technology companies, while the Chinese have over-stringent regulations with steering some efforts towards building an economy of innovation (with Chinese characteristics). India's role becomes prone towards promoting technology for socio-economic development, which is reasonable for the global economy to promote entrepreneurship and better economic practices. Let us now estimate how certain technology companies have achieved or addressed the legal avenues of regulation and oversight. TikTok's Issues on Surveillance and Auditing Tiktok has been contentious due to its data and company ownership issues for long. However, the potential of a low-attention spanning app to surveil populations was not properly understood by several governments in the North Atlantic region. In 2020, India had banned the App among many of Chinese origin or ownership due to these subtle privacy and security issues. The justification of the Government of India was backed by two concerns, data privacy-security issues and international trade law applied on national security considerations, taking into reference that there were border clashes at Galwan in June 2020. Recently, the United States has raised concerns on Tiktok's surveillance features. Emily Baker-White explains this in an article for Forbes: But an important factor distinguishes ByteDance’s planned collection of private users’ information from those cases: TikTok recently told lawmakers that access to certain U.S. user data — likely including location — will be “limited only to authorized personnel, pursuant to protocols being developed with the U.S. Government.” TikTok and ByteDance did not answer questions about whether Internal Audit executive Song Ye or other members of the department are “authorized personnel” for the purposes of these protocols. These promises are part of Project Texas, TikTok’s massive effort to rebuild its internal systems so that China-based employees will not be able to access a swath of “protected” identifying user data about U.S. TikTok users, including their phone numbers, birthdays and draft videos. This effort is central to the company’s national security negotiations with CFIUS. [...] Oracle spokesperson Ken Glueck said that while TikTok does currently use Oracle’s cloud services, “we have absolutely no insight one way or the other” into who can access TikTok user data. “Today, TikTok is running in the Oracle cloud, but just like Bank of America, General Motors, and a million other customers, they have full control of everything they're doing,” he said. It is also clear that to express considerations to promote "transparency", Tiktok has made some express disclosures on privacy policies for European users. Here is an excerpt from the report: TikTok updated its privacy policies for European users on Tuesday, adding explicit disclosures that personal data from the app may be viewed by employees in China. [...] In addition to China, TikTok data may be handled by employees in countries including Brazil, Canada, Israel, Japan, Malaysia, the Philippines, Singapore, South Korea and the US, the company said. Access to European user data, TikTok added, is allowed for “certain employees within our corporate group” and is “based on a demonstrated need to do their job.” Observing this clearly shows that governments in the North Atlantic region are not developing clearer self-regulatory measures, considering the fact that Chinese entities can bear legal justifications for any dissimulated measures to create confusion and uncertainty over their compliance ethics in practice. Outright ban may be possible but the problem with oversight and regulatory ethics is not limited to jurisprudence in a top-down fashion. Restrictive laws can be made, but regulations work when the economic and political coordinates that affect how such regulations and measures may work, are understood. Economic uncertainty looms in due to the interpenetrated relations among Western and Chinese business community people and the directed usage of the technologies among people, not just from an angle of purpose, but also precision. Political uncertainty has less to do with the need to regulate. All regulatory and oversight bodies of any hierarchy are created to develop political consensus within a legal and administrative polity to involve stakeholders. Governments in the North Atlantic region have to develop practical interests to shape their regulatory landscape. For example, the concerns raised by the US Chamber of Commerce on the EU's Digital Markets Act (DMA) may be genuine. However, even some generic implementation of the GDPR (which also is a stringent regulation) was made possible. The European Commission may not conflate GDPR violations with antitrust issues directly, but they can use the sophisticated nature of GDPR and even the DMA to enable some interconnected impact of their regulatory strength. Some hedging has to happen because it is inevitable that maximalist positions (if based on first principles, which is the case with DMA and GDPR to some extent) can be diversified by several countries. In short, territorially, the EU is the epicentre of regulation-related disruptions, which even China intends to be. The problem is this: on data and antitrust, many markets including India are already critical of China. That is not the case with Europe. Of course, the situation with Tiktok shows that dissimulated and protectionist conduct in tech regulation may yield some hedged results, but cannot be pushed further in the long-term aspect. Elon Musk's Ever-dynamic Approach for Twitter There is no doubt that Elon Musk has a special ambition for Twitter. Most of the measures regarding content moderation have not changed. A decision has been made to form a content moderation council for managing Twitter. Much cannot be stated from a legal perspective except some trends regarding the App's moderation and advertising avenues. To keep Twitter paid or not as a whole or in different segments of use is not a legal issue, but to ensure compatible moderation standards and avoid clickbait advertising and hateful & deceitful conduct on the App could be intriguing. Making Twitter a private company has also to do with the lack of clarity the algorithms have as they process user tweets and encourage users to engage, which could become a legal dilemma if free speech is manipulated by algorithms to keep encouraging users to give reactive and overtly contrarian opinions on the platform. Additionally, Twitter has to address the role of technology regulation bodies across the world, including those in India, especially under the IT Rules of 2021. Musk had tweeted once that Twitter has to abide the laws and rules of the countries across the world and free speech laws of those countries are the prerogative of their system and people. Twitter also causes antitrust issues by making US stock markets volatile by mere tweeting on cryptocurrencies and company shares, which also can be addressed if possible. From a competition and data law perspective, Twitter may create a better example of technology regulation and effective business models if the flaws are addressed properly. Apple's Security-Privacy Dynamic Apple's business angle on their guarantees on Privacy against advertisements and the dispute with Facebook explains their security-privacy dynamic. For sure, Apple's products offer security options and convert their privacy-security options into business considerations. There are some genuine concerns shared by Spotify, Meta, Google and others on the 30% commission for hosting on the App Store. Interestingly, the case of antitrust breaches by Apple in India filed by Tinder is unique. Here is an excerpt which explains the reasons why had Tinder filed the same: Match argues in its India filing that users in other countries often prefer to use payment methods which Apple does not permit, and in India a state-backed online transfer system was preferred. "Apple is therefore leveraging its dominant position in the iOS App Store market, to promote the exclusive use of its own payment solution," Mark Buse, head of global government relations for Match, said in the filing. Even when the Competition Commission of India had imposed penalties on Google on the OEMs and the Android Device Ecosystem, their explanation on the non-substitutability of the Play Store and the App Store is intriguing: Apple’s business is primarily based on a vertically integrated smart device ecosystem which focuses on sale of high-end smart devices with state of the art software components. Whereas Google’s business was found to be driven by the ultimate intent of increasing users on its platforms so that they interact with its revenue earning service i.e., online search which directly affects sale of online advertising services by Google. [...] The Commission examined the substitutability between Google’s Play Store for Android OS and Apple’s App Store for iOS from the perspective of all three demand constituents and found that there is that no substitutability between Google’s Play Store and Apple’s App Store. The CCI further noted that there might be some degree of competition between the two mobile ecosystems i.e., Android and Apple, however, that too is also limited at the time of deciding as to which device to buy. At that stage also, the CCI was of the considered view that the primary and the most significant factor in the mind of an end user is the hardware specification and the device price. While antitrust is a genuine area where Apple could be affected in the North Atlantic region, another issue which Apple has to resolve is their impact on small businesses and the algorithmic dragnet which affects several users. Ben Thompson explains the impact of Apple's App Tracking Transparency (ATT) policy in Stratechery: One of the interesting aspects of the company’s App Tracking Transparency (ATT) policy is that it very much touches on property rights. Most of the headlines (and, frankly, impact on advertising earnings) are about the unique Identifier for Advertisers (IDFA); post-ATT you only get the IDFA from end users if they agree to Apple’s prompt about tracking (which, it’s worth repeating, is much scarier than Apple’s own prompt). Apple can enforce this on a technical level: if you don’t agree to the prompt, then iOS simply doesn’t give you a valid IDFA. [...] However, ATT goes much further than this: it also decrees that you cannot “track” users using any other method; for example, a merchant as part of a sale almost certainly captures a user’s email address. However, that merchant cannot share that email address with Facebook, which would allow Facebook to match that purchase to an ad shown to a user with the same email address. Apple is not blocking this technically — all of this communication would happen on a server-to-server basis, not via the user’s iPhone — but they are blocking it legislatively, with the threat of App Review blocking the Facebook app. Conclusion Dysfunction is a real threat to self-regulation and owning the sophisticated and dissimulated form of operations that technology companies aspire for. There is some public discussion in place about the need to have public utility declared over platforms like Facebook, Twitter and others, by governments, in the US, India and other places. The problem yet remains unresolved even if that is being thought of: tech companies do not disclose enough and governments still fail to understand how the element of technology as a realm can be adjusted with the human element of accountability, privacy, foresight and explainability. There are genuine issues with political clarity but consultative engagement, for sure would legitimise the oversight and regulation bodies. Legal workability is the key to shape soft law principles which can be helpful.

The idea of a parallel virtual world has intrigued minds since several decades. The advent of the metaverse has created such possibility into a reality, resulting in significant benefits for users and business entities alike. The metaverse is an enabler for users from different parts of the world to engage in gaming, entertainment, social and business-related activities through a virtual medium in a digitally parallel world leading to creation of wealth, opportunities and recreational value. Since several transactions take place on a recurrent basis in the metaverse, the scope for Governments to tax such transactions also have immense potential. However, it is necessary that the methods and medium of tax do not deter the development of the metaverse in any manner. Similar to jurisdictions across the world, metaverse adopters in India have continuously been on the rise, consequently resulting in the increase in taxable transactions. However, the opportunity to tax has been undermined because of the absence of an effective mechanism to levy and collect such tax on metaverse transactions. With effect from 01st July 2017, a unified indirect tax system known as the Goods and Services Tax was implemented. Till date, several difficulties and ambiguities exist in the levy and collection of Goods and Services Tax on metaverse transactions and therefore, the present article is aimed at identifying concerns and addressing them with the goal of proposing more clarity in respect of Goods and Services Tax on Metaverse transactions in India. Understanding the Metaverse As evident from Figure 1 above, the Metaverse is a virtual world, parallel to the real world wherein users interact by way of digital avatars created by them. Depending upon use cases, the users may immerse in the Metaverse by using virtual reality in order to enhance their experience. There are tremendous use cases and the most prominent ones which have been seen so far are gaming, entertainment uses, advertisement of products, a host of virtual economic activities using cryptocurrencies or barters of non- fungible tokens, purchase and sale of assets in the Metaverse, content creation leading to the development of the Metaverse itself, conduct of social, collaborative and virtual events and planning, designing and testing activities in the Metaverse for potential products which may be offered in the real world. The list exponentially continues to grow recurrently, and it may not be surprising to see full- fledged livelihoods being supported by the numerous potentials of the Metaverse in the near future. From the Indian perspective, there is increasing interest and adoption of the Metaverse amongst Indian users. Data suggests that more than 5 lakh Indian users have shown interest in being a part of Metaverse projects up till the end of last year, making it fifth (5th) in the world in rankings of user interest in Metaverse projects. Due to the immense potential and possibilities of Metaverse in India, it is necessary for legal challenges to be addressed. Although legal challenges emanating from the Metaverse will span several specializations of law, this article is strictly focused on Goods and Services Tax (India’s indirect tax system) on Metaverse transactions. Basic Outline and Structure of the Goods and Services Tax Law in India Figure 2 above showcases that several statutes and rules emanating from such statutes are a part of the Goods and Services Tax law in India. The Central Goods and Services Tax Act, 2017 and the State Goods and Services Tax Act, 2017 concurrently apply to intra- state transactions, i.e., within the boundaries of the State itself. The State Goods and Services Tax statutes are in the names of the respective States such as the Madhya Pradesh Goods and Services Tax Act, 2017, Maharashtra Goods and Services Tax Act, 2017 and so on. Similarly, where business transactions are carried out within a Union Territory then the Central Goods and Services Tax Act, 2017 and the Union Territory Goods and Services Tax Act, 2017 have concurrent application. The concurrent application of these laws is a manifestation of co-operative federalism between the Centre and the States which is imbibed in the Goods and Services Tax law. The Central, State and Union Territory laws have delegated legislation in the form of the Central Goods and Services Tax Rules, 2017, State Goods and Services Tax Rules, 2017 and the Union Territory Goods and Services Tax Rules, 2017 emanating from the parent statute. In inter- state transactions, imports and exports, the Integrated Goods and Services Tax Act, 2017 and its delegated legislation, the Integrated Goods and Services Tax Rules, 2017 are applicable. The Goods and Services Tax Settlement of Funds Rules, 2017 conjointly emanate from the Central Goods and Services Tax Act, 2017, Union Territory Goods and Services Tax Act, 2017 and the Integrated Goods and Services Tax Act, 2017 prescribing reporting and compliance standards for the Government in order to ensure effective distribution of Goods and Services Tax Revenue as per the scheme and mechanism envisaged under the law. The Goods and Services Tax (Compensation to States) Act, 2017 and its respective delegated legislations such as the Goods and Services Tax Compensation Cess Rules, 2017 and Goods and Services Tax (Period of Levy and Collection of Cess) Rules, 2017 explicate the levy of Cess on the amount of Goods and Services Tax on luxurious goods and demerit goods with the purposes of compensating the State Governments for the losses incurred by them on account of the change in indirect tax system in India. Under the scheme of the Goods and Services Tax law in India, the subject matter of tax is “supply” which can include supply of goods, supply of services or supply of both goods and services in mixed or composite form. For the purposes of classification of goods, alignment is made to the First Schedule of the Customs Tariff Act, 1975 which in turn is aligned with the Harmonized Commodity Description and Coding System (referred to as the Harmonised System of Nomenclature or HSN in common parlance). For the classification of services, the Central Board of Indirect Taxes & Customs has devised the Services Accounting Code (SAC) which is based on the United Nations Central Product Classification. As far as the rates of Goods and Services Tax and exemptions are concerned, they are prescribed by way of Notifications for both goods as well as services. Principally, the rates of Goods and Services Tax as prescribed in the Notification are 0.25%, 3%, 5%, 12%, 18% and 28%. Determining and Identifying Nature of Transaction and Charge of Goods and Services Tax The first and foremost challenge which will have to be addressed and solved in respect of Metaverse transactions would be to determine their nature as either goods or services. Before moving forward, it is necessary to explicate that in order to avoid multiplicity in provisions, the provisions of the Central Goods and Services Tax Act, 2017 have been adopted by the State, Union Territory and Integrated Goods and Services Tax legislations and therefore, the definitions of the Central law would apply to all other Goods and Services Tax statutes as well. The term ‘goods’ has been defined under Section 2(52) of the Central Goods and Services Tax Act, 2017 to include all movable property including actionable claims and things attached or forming part of land but excludes money and securities. The term ‘services’ has been defined under Section 2(102) as anything other than goods, money or securities and has included activities related to either use or conversion of money. Under the Goods and Services Tax system, digital goods are treated as services by way of legal fiction through powers conferred under Section 7(3) of the Central Goods and Services Tax Act, 2017. In furtherance of this, the concept of ‘online information database access and retrieval services’ was envisaged, and the supply of digital goods has been subjected to the ‘services treatment’ for the purposes of levy and collection of Goods and Services Tax. Therefore, the nature of Metaverse transactions irrespective of whether digital goods or digital services are being provided, would be treated as “service” for the purposes of levy and collection of Goods and Services Tax as online information database access and retrieval services. To illustrate, irrespective of whether a Metaverse user sells virtual property or hosts an event for which consideration is collected, it would still be treated as a “service” by way of legal fiction. The second challenge which will have to be addressed and solved is identifying if Goods and Services Tax has to be paid on forward charge or reverse charge basis on Metaverse transactions. For this, it is necessary to first understand the scope of online information database access and retrieval services which is explicated by way of the table below. The aforesaid table showcases the scope of online information database access and retrieval services as provided under Section 2(17) of the Integrated Goods and Services Tax Act, 2017. Transactions in the Metaverse would also be covered under its ambit since the indicative list of online information database access and retrieval services is an inclusive and detailed list capable of covering activities of the Metaverse. Coming to the issue of forward charge or reverse charge, the figure below demonstrates the different scenarios and links it with the forward or reverse charge payment postulated under the scheme of the Goods and Services Tax law. Figure 4 above envisages five scenarios. First is where the supplier of service as well as the recipient of service in a Metaverse transaction are located within India. In such instance, the Goods and Services Tax will have to be paid under forward charge. This means that the supplier of service will collect the applicable tax amount from the recipient of service along with the consideration amount and pay it in the Government Treasury. The second scenario is where the supplier is located outside India and the recipient of the service is located in India having valid Goods and Services Tax registration. Under such circumstances, Goods and Services Tax will have to be paid under reverse charge. This means that the supplier cannot collect any Goods and Services Tax amount from the recipient and the recipient itself will self- assess and deposit the applicable Goods and Services Tax in the Government Treasury. The third scenario is where the supplier is located outside India and the recipient is located in India, but being an end consumer is not registered under the Goods and Services Tax law. Under such circumstances, the supplier will have to deposit Goods and Services Tax on a forward charge basis even though it is located outside the taxable territory. For this purpose, the concept of non- residential taxable person has been stipulated under the Goods and Services Tax law. The fourth scenario is where in the Metaverse transaction, the supplier is located in India but the recipient is located outside India. In this transaction, Goods and Services Tax will have to be paid on forward charge basis and the supplier will pay the Goods and Services Tax amount after collecting the said amount along with consideration from the recipient of service who is located outside India. The fifth scenario is where both, the supplier as well as the recipient of service are located outside India and thus, Goods and Services Tax is not leviable. Classification of Metaverse Transactions under GST Since the nature and liability of tax in Metaverse transactions have been discussed, it is necessary to now address classification of such transactions. The Tariff Heading where Metaverse transactions can be classified is Heading 99.84.39 which reads as, “Other on-line contents nowhere else classified” and the rate of tax applicable is 18%. This is because any transaction which occurs in the Metaverse would be nothing but transfer of data over the medium of internet and such transfer of data over the medium of internet would be treated as “online content” for the purposes of Goods and Services Tax. For example, if a user decides to build a house in the Metaverse or purchase a car in the Metaverse then it would, in the core sense be transfer of data over the medium of internet classifying it as online content being supplied as online information database access retrieval services for the purposes of levy and collection of Goods and Services Tax. Valuation of Metaverse Transactions under GST The next challenge which requires to be addressed is valuation under the Goods and Services Tax of Metaverse transactions. Section 15 of the Central Goods and Services Tax Act, 2017 read with Rules 27 to 35 of the Central Goods and Services Tax Rules, 2017 stipulate the valuation provisions. When payment for a Metaverse transaction is made in Indian currency, then there would not arise any problems since the general valuation provision under Section 15(1) of the Central Goods and Services Tax Act, 2017 which states that the transaction value would be the price actually paid or payable and Goods and Services Tax at the rate of 18% would be attracted on such price. However, payments in the Metaverse are also being made in cryptocurrencies which are not recognized as legal tender in India and thus, will constitute as barter. The scope of supply as envisaged under Section 7 of the Central Goods and Services Tax Act, 2017 embraces barter transactions and therefore, levy and collection of Goods and Services Tax have to be made on barter transactions as well. For cryptocurrencies, it is a challenge from the Indian context to conduct valuation for the purposes of Goods and Services Tax. Rule 27 read with Section 15(4) would become applicable in such instance and the open market value of the supply will determine the value of supply. This means that in case payment is made in cryptocurrency in a Metaverse transaction, then the market value of the cryptocurrency on the date on which payment is received by the supplier (as per time of supply provision under Section 13 of the Central Goods and Services Tax Act, 2017) would become the value and Goods and Services Tax at the rate of 18% will have to be paid on such transaction. Conclusion In view of the discussions undertaken in the present article, it is quite clear that several challenges exist for taxpayers and tax administration alike in levying and collecting Goods and Services Tax and it is necessary for such challenges to be taken up during the Goods and Services Tax Council Meetings and consequent mechanism to be created in order for there to be better clarity in respect of levy and collection of Goods and Services Tax on Metaverse transactions.

Recently, on July 2, 2022, the Indian Judiciary made history of good jurisprudence in the field of Indian Securities Law. This was done through a 20-year long pending petition against Balaji and Co., i.e., the accused in the instant matter, by the Securities Exchange Board of India (SEBI), i.e., the complainant in the instant matter. The contention of the complainant was that the accused had been dealing in the securities market as an unregistered sub-broker, i.e., without rightfully obtaining a registration certificate from the Securities and Exchange Board of India (SEBI). It was considered to be a grave offence when it was pointed out that the accused had played a hideous role in duping innocent people who were dealing in the securities market by providing them with a couple of fake shares. The article explains the judicial development and its significance. SEBI Regulations on Stock Brokers Before the article proceeds to get on to the result of the case against the accused, i.e., Balaji and Co., it is important for one to be able to understand the contention of the complainant. As according to Rule 3 of the SEBI (Stock Brokers and Sub-brokers) Regulations of 1992, a stock broker is particularly mandated to make an application to the Securities and Exchange Board of India (SEBI) for the grant of the registration certificate. It is imperative to understand in the instant context that without the proper grant of a certificate to the stock broker, it is not eligible to act as such. Thus, in this manner, the certificate granted by the Securities and Exchange Board of India (SEBI) acts as a form of an authorisation for such a stock broker. The presence of this rule alone makes it clear that the intention of drafting it was to specify the eligibility of the person who may be eligible to act as a stock broker. Since in the instant matter, Balaji and Co., was not an eligible entity to do so, the subsequent acts conducted by it were considered to be against the rules mentioned under the SEBI (Stock Brokers and Sub-brokers) Regulations of 1992. Thus, based on this contention, the complainant filed an application under the SEBI as soon as it was able to under Section 24 of the SEBI Act of 1992, contending that the accused was in violation of Section 12 of the SEBI Act of 1992, Regulation 3 of the SEBI (Stock Brokers and Sub-brokers) Regulations of 1992, and Section 17 of the Securities Contracts (Regulation) F of 1956 on 24th September 2002, all of which sum up to the same violation more or less, i.e., acting without a proper grant of certificate. It was, however, observed that the complainant had delayed in filing the complaint against the accused in the present petition, bringing out an important issue in today’s discussion about the development of the jurisprudence in regards to the Indian Securities Law, i.e., whether a delay in the filing of a complaint against an unregistered sub-broker can be condoned by the court or not, and whether the Economic Offences (Inapplicability of Limitation) Act of 1974 can be applied or not. The Balaji and Co. Case and its Significance To be more specific in layman’s terms, the court needed a valid explanation in terms of Section 473 of the Criminal Procedure Code of 1973 in regards to why there was a delay of a total of 106 days, i.e., approximately three months and fourteen days in the filing the complaint against Balaji and Co., i.e., the accused in the present matter. Moreover, in addition to the above, the counsel for the accused also contended in front of the just court that the complainant had brought forth the present application after twenty years after the court had already taken cognizance of the fact that the schedule of the Economic Offences (Inapplicability of Limitation) Act, 1974 does not include the SEBI Act of 1992; thus, highlighting the legislative intent to exclude the same. Thus, it was pointed out by the counsel for the accused that it would be completely unreasonable on the part of the court to condone a delay after such cognisance has been taken, while it additionally has not satisfied itself in regards to why such delay in filing the application took place in the first place. The analysis of the jurisprudence that marks the first few pages in the advent of the Indian Securities Law took place when the counsel for the accused, based on the aforementioned contentions submitted in front of the court that the application was not maintainable. The story takes an even more interesting turn when the court interprets the language of the legislature in Section 473 of the Criminal Procedure Code of 1973 to carve out the sweet-smelling honey of justice. To quote the words delivered by the Supreme Court of India, “Section 473, CrPC does not in any clear terms lay down that the application should be filed at the time of filing challan itself. The words ‘so to do in the interest of justice' are wide enough.” To understand this part by part, one must first understand the contents of Section 473 of the Criminal Procedure Code, which states that any court has the power to take cognisance in regards to an offence after the limitation period associated with it has ended if it is able to satisfy itself based on the facts and circumstances of the case that such delay has been properly explained, or if taking such an action is necessary for the court in order to aid the hands of justice in accordance with the law of the land. In the present matter in relation to the matter of Balaji and Co., i.e., the accused, the court has exceptionally exercised its inherent powers that have been vested upon it by a part of Section 473 of the Criminal Procedure Code of 1973 (implicated through a thorough interpretation of the provision) by pronouncing that since the accused had played a role in imposing fraudulent behaviour upon the public, the court found it necessary to intervene and condone such a delay of 106 days in filing a complaint against the accused. However, although on one hand, the counsel for the complainant won the battle in being able to help the hands of justice meet, it erred in understanding certain parts of the way the law of the land essentially works, thus marking a possibly dangerous precedent that the Indian judiciary could not have accepted. To explain why it faced a delay in filing the complaint against the accused under Section 473 of the Criminal Procedure Code, the complainant had claimed that since the SEBI Act of 1992 had replaced the Capital Issues (Control) Act of 1947, the Economic Offences (Inapplicability of Limitation) Act of 1974 should apply to the SEBI Act of 1992 by way of simple interpretation of the legislature after the repeal of the Capital Issues (Control) Act of 1947. However, the court while analysing what both the parties had to say claimed that the contention of the complainant is ‘unacceptable,’ since the schedule in the Economic Offences (Inapplicability of Limitation) Act of 1974 never got amended and never explicitly mentioned the SEBI Act of 1992, thus, stripping off the power granted by the Economic Offences (Inapplicability of Limitation) Act of 1974 that was quoted by the complainant. Hence, it cannot be said that the SEBI Act of 1992 is subsequently devoid of the provisions of Chapter XXXVI of the Criminal Procedure Code of 1973 on the abovementioned ground. Conclusion Based on the abovementioned explanation, the just court of law presiding over the instant matter rejected the argument of the complainant and held that since a delay has in fact occurred in the process of filing the complaint against the accused, the complainant should seek condonation. However, it is also interestingly observed that despite the failure of the complainant on a major ground, the court accepted its explanation for such a delay in filing the complaint based on the ground that since the SEBI Act of 1992 in itself is considered to be a legislation that promotes the core value of social welfare and growth of the securities market. Moreover, it is one of the paramount duties of the court of law to be able to adopt an interpretation which is able to further the purpose of such a law, thus promoting the actual intent of it. Hence, in this manner, the court made significant history in regards to the field of the Indian Securities Law by filling in the gaps that were present in the subject matter in relation to understanding the legislative intent of the proposed laws in relation to the limitation period of offences that come under the SEBI Act of 1992.

In India, practices related to competitive and anti-competitive practices, in the post-1990 period, are regulated under the helm of the Competition Act, 2002. However, we are aware of the fact that this act requires some tremendous changes, so that it adapts with the information age we all live in. As of now, it has become obvious that India’s key strength at the level of diplomatic engagement and influence, is reliant on a new critical domain, which the Union Government has adapted with time - digital technologies. There are obvious reasons why India aims to become a technology superpower or at least a regulatory superpower in digital technologies, maybe in the lines of/better than the European Union. In this article, it is proposed how India can transform its competition policy, which is dynamic and adaptive, in sync with its technology policy. India’s Technology Policy at a Glance India’s tech policy is a mixed bag. However, the bureaucratic efforts to stabilise and empower its technology governance efforts has become quite visible. Now, there are some key areas, which complete the trajectory of the technology policy. In some ways, the developments should have been achieved way before, but maybe one advantage that India does have as compared to Japan, China, Singapore and other Asian economies is the Indo-Pacific situation. It is assumed that technology as a domain area for being distinctive need not be interconnected to other policy domains of concern. However, the generalising (and homogenising) tendency of technology as we know, has led us to the reality where the role of technology has become generalist in many ways possible. Even in jurisprudence, technology law has the potential, in real terms, to gain the status of generalist purpose, akin to international law and public law. That is accounted due to the penetrable nature of the field, which countries across the world are concerned about. Not only it complicates the policy discourse surrounding technology governance, but it compels policymakers to propose sensible interconnected legal and policy conundrums, which germinate the purpose and extent of digital technologies in this information age. Of course, the extent of digital technologies may not be the same in every domain or industry, even if many technology enthusiasts and industrial leaders might envision the same. It is therefore necessary that India adapts to pursue rejuvenating its technology policy, which is all-comprehensive with its own speciality and mobility. As discussed in the Book Review of “The Network State”, there could be a situation, where technology policies of the US and China would target the most active and evolving element of critical technology - mobility. Legal thinking can be used to create visible spaces for positional inference to guide tech-oriented mobility in various industries, which is where India’s concerns largely would lie. As of now, it is visible that technology governance in India, despite the absence of relevant legislations (and the presence of some sector-specific regulations), guides international trade, sustainable development, entrepreneurship and innovation. Now, a regulatory regime is essential to India’s technology policies, which has a clear juristic understanding of ethical and unethical practices. The problem with the earlier withdrawn Data Protection Bill clearly was its arbitrary nature on multiple grounds. Another major reason for the withdrawal of the Bill is that India is required to enact a data protection law, which is effective, reasonable and far-reaching in line with other technology regulators in Europe and Asia. It is true that certain big tech companies did not adhere with the IT Rules of 2021 in a proper manner. However, a pre-emptive approach to create pressure and constraints for foreign companies would not be helpful in handling the issues associated with the intermediaries. There is another issue with India’s technology law approach that it lacks a sectorial vision in understanding technology governance. Nevertheless, the effective measures that the Reserve Bank of India and SEBI adopt to govern fintech companies and their activities & operations are still better than those of the IT Ministry. It is thereby proposed that shaping competition policy can help in cultivating a sector-to-sector approach towards technology regulation. Considering the scope of the proposed Competition (Amendment) Bill, 2022 (currently under review in Standing Committee in Lok Sabha), it is proposed that India requires to assess the possibility of a dynamic competition policy, which enables Indian market players and regulators to establish more equitable positions amidst the regulatory systems of the US, China and the European Union. Regulating competitive practices is not possible under obsolete frameworks and legal definitions. This also links to the entrepreneurial culture and management practices which shape the trajectory of corporate governance in India. Looking it from a perspective of knowledge management and systems, making competition policy dynamic enhances the bargaining power of Indian regulators. It also enables to have a design-oriented perspective on anti-competitive practices in the markets. In the next section, the theory of dynamic competition and its scope in the Indo-Pacific region is proposed and discussed. Dynamic Competition Law in the Indo-Pacific Dynamic competition has been discussed as a concept for long. This article, entitled Dynamic Competition in Antitrust Law, authored by Sidak and Teece explains dynamic competition and its development in American Law: Schumpeter was among the first to declare that perfect competition was incompatible with innovation. He noted that “[t]he introduction of new methods of production and new commodities is hardly conceivable with perfect—and perfectly prompt—competition from the start. And this means that the bulk of what we call economic progress is incompatible with it.” […] The fact that perfect competition is inconsistent with innovation does not necessarily mean that monopoly is a requirement. Schumpeter himself recognized, as we do, the importance of pluralism and rivalry in the economic system. However, one need not define rivalry as occurring inside some tightly circumscribed “antitrust market” containing only existing competitors, with their capabilities proxied by existing market shares. Moreover, numerous variables complicate any simple relationship between the generation of monopolistic rents and the allocation of resources to develop new products and processes. In general terms, dynamic competition implies that innovation and evolutionary considerations guide the transformation of markets and their product & process innovations. The neoclassical understanding of regulating prices as the key aspect of competition law does not bode well for the Global South countries, including India, because it is essential to incorporate the potential and scope of complexity science to determine how digital products and services affect unrelated industry sectors and their economic cycles. For example, the policy discourse on responsible artificial intelligence ethics completely ignores the competition law outlook on the ethics of AI. There are economic considerations behind the inclusion and democratisation of AI technologies, and the mere process if is not understood from a corporate governance perspective, then merely having oversight boards and self-regulated solutions, generally do not serve the cause of AI ethics. The 2nd-order effects of such activities could be reckoned in unrelated sectors and the complexity behind the manipulation of digital markets must be understood properly. According to Anouk van der Veer in Calling For a New Theory of Dynamic Competition (2022), for Network Law Review: Dynamic competition draws on innovation economics as defined by Austrian School economists, e.g., Schumpeter and Hayek. Whereas neoclassical economics focuses on reaching economic equilibrium, Austrian economists see competition as a process in a state of disequilibrium. By extension, elements such as products, demand, and supply should not be taken as static data. These elements are subject to constant change due to companies striving for innovation and growth rather than economic efficiency. Dynamic competition looks at competition coming from “the new commodity, the new technology, the new source of supply, the new type of organization”. Taking into perspective the digital realm in the Indo-Pacific region (most of Asia), dynamic competition, especially in the case of digital technologies - is an important necessity to understand. It enables actors and regulators to work on empowered legal, policy and entrepreneurial solutions, which enable sustenance and growth. Now, according to van der Veer, there are four aspects1, which shape dynamic competition per se in her article - (1) innovation economics; (2) evolutionary theory; (3) complexity theory; and (4) resource-based theory. My assessment is that (the proposition may relate to the regulatory landscape in Europe, yet) this approach is contextually relevant even in the case of India as an aspiring regulatory superpower. Thus, as per the diagram below, India must ponder upon adopting a dynamic competition approach, which caters to four important factors: innovation, transformation, adaptivity and values. Let us understand how each of these four factors are necessary. Innovation relates to questions related to intellectual property rights, and impact analysis examining ripple effects in other relevant sectors and industries. Transformation, which relates to the evolutionary theory, implies how regulatory expectations keep up with times and promote Soft Law measures (for example, self-regulation measures to be undertaken by Cab Aggregators as directed by the Competition Commission of India, recently) and the interconnectedness of digital markets is dealt in a creative manner. Adaptivity, refers to Complexity Theory (also known as Complexity Science), which is also important because understanding risks, development cycles and trends help us to find bottom-top regulatory solutions when top-down measures incur limitations and are static. It also enables us to adopt mature and flexible legislative solutions in future. Now, Values, refer to the moral component of dynamic competition here. However, they also include the adoption of resource-based theory, where, let us say any digital product or service would be subject to value assessments. The ethics behind these assessments and background checking for sure guide the moral compass of decision-making at best, and makes dynamic competition rooted to realities. In the next section, the propositions to shape India’s Competition Law regime are discussed. Initial Propositions and the Conclusion Usually, dynamic competition has been misinterpreted as a means to justify the financialisation of the “free market” as we call it by the big tech companies, especially the FAAMG companies. However, understanding dynamic competition for sure enables countries like India, which as of the current economic situation, despite pitfalls, has survived and is growing sustainably. As a developing country and a middle power, India’s economic outlook towards assessing any potential anti-competitive practice may be different. Although it could be an early proposition to anticipate the need of dynamic competition policies in India, due to the economic situation and the maturation of market players. At least to begin with, India may address two important questions: How much inherent and connected digital technologies have become to restrict or affect competition? How much multi-sector or cross-sector impact of digital technologies as products or services could be determinable under the current Competition Act, 2002 and the regulatory landscape? We have to anticipate the proposed Digital India Act, and maybe a newly introduced Personal Data Protection Bill to see how the Union Government addresses these 2 questions. However, looking at the trend of technology companies gaining impetus, it is apparent that the penetrability of digital products and services in certain cases, can become cross-sectoral. We are already seeing that trend with several fintech applications, and the restrictions on cryptocurrencies by RBI. Even several tech-based aggregator companies are under the radar, which shows that like any information and innovation economy, India is not innovating enough in that way as players in the EU, China and the US are seeking towards. Nevertheless, the language of innovation in economics does not end with the static vision of “monopoly” and there are possibilities of mediating the protectionist and all-pervading tendencies of innovation. Even in the recently proposed Indian Telecommunication Bill, 2022, the Union Government has proposed to broaden the definition of telecommunication services to include OTT communication services, internet-based communication services and broadcasting services among others. This is intriguing because it may be possible that market players in the OTT industry, for example, would have to take licenses, share revenue with the government and be treated to same rules as telecom service providers. A little relatable example comes from France where Netflix was obligated to invest 20-25% French revenues in French content under the Audiovisual Media Services Directive of the European Union. Creative solutions like these can be achieved in their own realms and economic-legal basis, if self-regulation serves some developments. It however does not mean that dynamic competition justifies any state-led or private sector-led weaponisation of technology-based market economy. Where India stands is perhaps at the aisle of preventing major competition law violations, and also mediating way for sustainable and distinctive innovations, which may further the cause in Africa, Latin America and the rest of the Indo-Pacific as well.

The Competition Commission of India (CCI) is known for its proactive approaches in addressing the anti-competitive practices of certain FAAMG companies in India. Yesterday at 8.57 PM IST, a Press Release by PIB informed about the CCI’s imposition of penalty on Google, which reads as follows: The Competition Commission of India (Commission) has imposed a penalty of Rs. 1,337.76 crore on Google for abusing its dominant position in multiple markets in the Android Mobile device ecosystem, apart from issuing cease and desist order. The CCI also directed Google to modify its conduct within a defined timeline. In this article, I will deconstruct the press release and elaborate about the purpose, significance and legal outlook that CCI and Google could take up on this order. To begin with, the order is significant. The detail however lies in the purposive aspect that the Commission is interested in. The Order, Deconstructed The CCI focuses on the 5 kinds of markets in India, with which the Android Mobile Device ecosystem can be related with, on the basis of which the Commission imposes penalty on Google: Market for licensable OS for smart mobile devices in India Market for app store for Android smart mobile OS in India Market for general web search services in India Market for non-OS specific mobile web browsers in India Market for online video hosting platform (OVHP) in India. Now, this is no revelation, because the markets posited by the Commission are obviously critical, when it comes to Indian digital markets. According to CCI, the legitimate basis of delineating the 5 markets comes from understanding Google and Apple’s business incentives behind even dominating mobile device and applications ecosystem. Google’s approach towards garnering consumers is a horizontal approach, i.e., “increasing users on its platforms so that they interact with its revenue earning service i.e., online search which directly affects sale of online advertising services by Google.“ The reason this is a horizontal approach is, because ecosystem, which Google has maintained, relies on the proximity of services, which could be interconnected or limitedly distinct, for example, YouTube, Google Maps, etc. On the other hand, Apple’s larger focus is creating a vertical chain of high-end smart devices, in the form of an ecosystem (which we can understand from Apple’s Privacy Features, thereby clearly affecting Meta (Facebook), Spotify and other companies). In a nutshell, the main 3 points depicted in this diagram made by CCI explain why they have imposed penalty on Google, as of now, focusing on the three consumer groups. Now, on OEMs, the CCI has made valid points, which, despite being preliminary, has substance. Let us also analyse what measures regarding OEMs, have been recommended by the CCI: OEMs shall not be restrained from (a) choosing from amongst Google’s proprietary applications to be pre-installed and should not be forced to pre-install a bouquet of applications, and (b) deciding the placement of pre-installed apps, on their smart devices. This measure is genuine, and practical enough. Deciding the placement of pre-installed apps, is undoubtedly connected to the lack of choice that Google offers via making its proprietary applications, when they are pre-installed. Licensing of Play Store (including Google Play Services) to OEMs shall not be linked with the requirement of pre-installing services and apps offered by Google. Delinking the pre-installing requirement is also a genuine measure, which is a consumer-friendly measure, to promote the economics of choice. Google shall not deny access to its Play Services APIs to disadvantage OEMs to ensure interoperability of apps between Android OS to meet compatibility requirements of Android Forks and Google. The measure is reasonable, and would create safer spaces for OEMs in India, especially in the digital markets. Google shall not impose anti-fragmentation obligations on OEMs. OEMs should be permitted to manufacture / develop Android forks based smart devices for themselves. Google shall not incentivise or otherwise obligate OEMs for not selling smart devices based on Android forks. Now, there is no doubt that the measures proposed in good faith, are rational and bear context. Now, it would be appropriate to assess the repercussions of this order, only with a competition law perspective because the technology law governance framework in India, is yet to be legislated beyond the Information Technology Act, 2000, which again, considering the 2021 Rules, only would trace the role of Google as an intermediary. We have to understand that on technology-related adherence, big tech companies have not properly adhered with India’s requirements. Part of the blame goes to the companies not being concerned, while the other issue lies with the Government for coming up with impractical rules. This excerpt from an article published by Swarajya on the IT Rules explains the issues, for example, in the Part II, Rule 5, Sub-rule 8: The author explains the issues in this sub-rule: If the intention of the government was to bar the intermediaries from playing publishers, then there was no need to lay down elaborate ground rules for censoring. Some might want to argue that this censoring is in relation to the orders passed by the court or the government but for such requests, others clauses have adequately dealt with in depth. Another error was pointed out in Rules 3(2) and 4(6) by the author, which further explains the Government’s failure in creating practical regulations: This is in addition to all the requests that the intermediaries have to comply with from the law enforcement agencies and the government departments. Given the number of users, it would be practically impossible for any intermediary to adhere to these rules even if they hire an army of employees to execute it. It seems that the rules have been framed to ensure non-compliance and create numerous loopholes to punish intermediaries than come up with a decent mechanism that is aimed at resolving genuine problems. Even the earlier Data Protection Bill proposed had innumerable errors, which needed correction. Unless any consistent regulation or law is approved, which has a flexible approach, mere posture to regulate does not suffice. It is reasonable to state that CCI’s approach towards FAAMG companies and their anti-competitive practices, at best, has been consistent and specific. The problems raised are clearly genuine. Can there be a Possibility of Self-Regulation and Ex-Ante Measures? Now, it is obvious that the CCI points out to the bundling of services and products and leveraging practice attributed to the same in the case of Google. However, there are genuine concerns on the regulatory landscape. Vikas Kathuria discusses the same in an article for Observer Research Foundation: The antitrust issues that have arisen elsewhere have resonated in India as well. There have been five cases against Google before the Competition Commission of India (CCI) spanning search, Android OS and Play Store. […] While the CCI is doing its bit to ensure fairness in digital markets, a need for some form of regulation is already felt. In its e-commerce market study, the CCI has mentioned the need for marketplace platforms adopting self-regulation to ensure transparency concerning search ranking; collection, use and sharing of data; user review and rating mechanism; revision in contract terms; and discount policy. This form of regulation, however, falls far short of preemptive ex-ante regulation that the EU has suggested in the proposed Digital Markets Act for ‘gatekeeper’ platforms. Consequently, India should adopt binding ex-ante regulations for digital ‘gatekeepers’ to ensure market contestability for businesses including start-ups and fairness for users. The CCI’s measures, if looked closely, show that they might indicate Google to adopt some course correction measures to indicate their focus towards self-regulation, based on the details and data Google had offered them. Although, self-regulation measures can be legitimised through any new rules or notifications, the Commission in the case of cab aggregators, has released an advisory on self-regulating measures. Now, as Kathuria suggests, an ex-ante regulation could be a good tool for the Commission to further steer their measures on “gatekeeper platforms” like Google and Apple. However, a reason that CCI has not come up with any proposed regulation, is because advisories and orders, may be used for a piecemeal approach to address anti-competitive practices, considering the strategic market status (SMS) of companies of those sorts. In the Indian case, there is no legal understanding or basis of the term “strategic market status”. Maybe the Commission could find it reasonable not to integrate their focus on companies which may fit the category of SMS, as of now. Nevertheless, the Government of India is certainly interested to create a technology and competition governance framework, which addresses the problem of vulnerability in the markets due to the presence of companies in multiple sectors. We can safely state that this order, is clear in addressing Google’s dominant position. However, from a governance perspective, it is necessary that the Commission may opt to estimate what kind of self-regulatory measures can be adopted with time. Common Issues, Special Approach India’s competition law approach towards FAAMG companies is specific and practice-focused, despite the obvious fact that many issues raised by the regulatory body on the anti-competitive practices, are commonly faced by regulators across the globe. Biding time would be necessary, before self-regulatory or ex-ante measures could be endorsed by the Government. However, the CCI through such orders and advisories, can attempt to address and embrace India’s potential to become a regulatory superpower, with a hedging approach. As Nikhil Pahwa, the founder of Medianama, points out , Google may go to the Indian courts to challenge CCI’s order, due to hefty restrictions on their business model and practices by the regulator. As the tweet quoted above explains, enabling more security and fragmenting Google’s power to control the ecosystem may be a reasonable move. However, the cross-compatibility of applications can only be dealt by data and tech-related regulatory solutions. The lack of compliance among technology companies however has to be dealt with a comprehensive outlook which may solve the multi-sector implications of the companies’ presence, with time. Additionally, Google does not support the proposition of having a self-regulatory body, according to Reuters, which Facebook India had suggested. Perhaps, decoupling is not the approach that competition regulators adopt. Blending domestic regulations and public policy choices that governments make, in the case of digital technologies, would create sustainable information economies and chains. Some Updates Recently, Google was suppose to impose 15-30% commission on in-app sales on Play Store, while denying app developers the choice to opt for other payment gateways in India. Another penalty of approx. 933 cr INR has been imposed by CCI. This is a landmark development. Deadline for implementation of this billing policy was set on October 31, 2022. In addition, a new order has been published by CCI stating Google's GPBS to be anti-competitive. Point 9.2 in the order is clearly landmark in virtue and action. The assessment explains the Commission's conclusions: Point 9.2 in the measures explains a critical action Google is required to do, which will hurt them deeply: Google shall not impose any Anti-steering Provisions on app developers and shall not restrict them from communicating with their users to promote their apps and offerings, in any manner. If we look these measures consecutively, we can say that the approach taken by CCI is quite competent and will have major implications ahead for good.

Digital Technologies have transformed supply and information chains for businesses around the globe. For instance, artificial intelligence (AI) as a technology has permeated every sphere of commercial business activities ranging from chatbots, voice recognition, and facial recognition. The general concerns of privacy, data breaches, and specific concerns of bias and data profiling can ensure a large number of disputes. Therefore, the importance of ADR methods to address such issues with expert technical knowledge and understanding the know-how of technology is very important. Regardless of this specific technical expertise, it is important for dispute resolution professionals and arbitrators to identify some potential issues in any technology disputes. In this article, the trends related to dispute resolution mechanisms on issues surrounding artificial intelligence and other digital technologies have been discussed. Current Means of ADR on Issues Related to Digital Technologies Generally, the stakeholders who are involved in mechanisms of dispute resolution i.e., the arbitrators, negotiators, mediators, and other dispute resolution professionals will often have to deal with the intermeshed questions of law and technology to identify the party responsible for the actions committed by any AI product or services. In order to counter the common issues arising from dispute resolution mechanisms such as costs, time frame, and jurisdictional issues it could be a way to adhere to model clauses for dispute resolution. Procedural rules from various jurisdictions can be combined to create uniform rules for technology arbitration, negotiation, and mediation at a global level. These procedural rules and guidelines will confirm a time frame for the resolution of a dispute and will resolve basic jurisdictional challenges and promote an efficient dispute resolution system. The substantive and procedural laws are already prefixed by the parties in the contracts. This will also ensure that jurisdiction is conferred to a specific place. These model clauses and procedural guidelines will assist parties involved in the dispute as well as the dispute resolution professionals to adjudicate upon the developing areas of technology-related questions instead of diverting focus on extant conflict of law issues arising in dispute resolution. For a more consumer-focused dispute resolution, the guidelines should be domestically oriented depending on the place where the company operates within the country or where the consumer resides (in personam jurisdiction) or a more convenient forum (Forum conveniens). The various methods of Dispute resolution to deal with Technology related disputes would include the following as described. Technology Arbitration Technology-related arbitration has grown from typical commercial contracts and agreements to include a wide array of claims pertaining to consumer, IPR, and competition law issues. Lawsuits arising from the liability of the semi-autonomous and autonomous vehicles, for example, can also be addressed via arbitration. The complexities arise in identifying the parties responsible for the malfeasance. It can include the owner of the system/technology, the developers and the engineers or the company manufacturing the AI products and services. The essential feature of technology-related arbitration is to ensure that a neutral place for dispute resolution is chosen. For example, since it involves questions that would require technical expertise, especially on privacy concerns surrounding the AI system due to an error in the code of the system, it can be dealt with by neutral experts that have specialized knowledge and experience to assist the arbitrators in the decision-making process. Since Arbitration is relatively a flexible process where the parties can lay out their own procedure, costs are shared and specialized expert opinion can be provided in complex artificial intelligence disputes. External Dispute Resolution (EDR) This is a widespread practice for ensuring accountability and an oversight mechanism, for example, in the case of Australian Financial Complaints. This mechanism of dispute resolution can also be utilized for any consumer-related issues arising from technologies such as privacy concerns, compensation for any tort committed, etc. For instance, if an AI service or product has mishandled personal information or caused damage to the consumer, then an EDR scheme can be proposed to handle specific consumer complaints. Complaints can be made by Consumers for which EDR will ensure that the companies and businesses can respond within a specific time and accede to the request of the consumers. If no satisfactory response is received by the consumer, then in accordance with the policies, guidelines and recommendations, further examination of the consumer complaint will be taken up by the independent persons in EDR. Upon a fair and reasonable assessment, negotiation will be conducted between the consumers and the businesses for reaching an agreement on the amount of compensation. Expert determination Expert determination can take place if there is a pre-existing expert determination clause in the contract between the parties. A dispute can be referred to as expert determination where the submission can be made by parties. An expert can be selected by the parties unanimously and can be someone with technical knowledge and expertise to determine the various technical facets of the dispute. The decision of the expert would be binding on the parties. The expert determination as a dispute resolution mechanism can be used alongside an existing arbitration or mediation case. It can be used for IPR-related claims arising from the dispute. The clauses governing expert determination in the contract would establish the jurisdiction hence removing the issues associated with jurisdiction. Unlike arbitration, where an expert would be appointed at a later stage by the Arbitrator, expert determination appoints an expert to decide the entirety of the dispute[1]. The usual problem with technology-related arbitration is the appointment of technical experts from both the sides to adduce evidence, each providing their expertise on the dispute at hand. The question at hand remains with the arbitrator to choose which expert evidence to be preferred and this major question is left to be decided by the arbitrators. These issues with technology-related arbitration have encouraged parties to appoint a neutral technical expert themselves for analysing the entire dispute and are the decision makers of the dispute. This usually involves the appointment of a neutral technical expert by the parties through an agreement. In a usual case, if the parties cannot agree on a neutral expert, then an industry expert will be appointed. In the case of AI-related disputes, a neutral technical expert can be appointed by a proposed Law and Technology body, whose details have been provided at a later section in this article. For instance, if there is an AI-related dispute concerning the manufacturing of the AI product and the parties involved are the company’s developer of the AI software and the manufacturing company, then a neutral technical expert can be appointed in accordance with the agreement entered into between the company and the manufacturers to decide the dispute instead of appointment of an arbitrator. The decision of the expert will be non-binding or binding, at the option of the parties to the agreement. However, parties should seek some guidance while drafting the expert determination clause to reflect accurately and layout exhaustively the scope of disputes that are submitted to experts for decision making. More often than not, when there are a large scope of disputes and defaults arising from AI-related technology services, disputes can be split between technology arbitration, meditation-negotiation and expert determination depending upon the parties involved, cost-effectiveness, and nature of the dispute. Expedited Arbitration As the name suggests, it is an arbitration method used in WIPO (World Intellectual Property Organisation) as a dispute resolution mechanism that is carried out in a short span of time by eliminating costs and adhering to strict time limits in each stage of the Arbitration. WIPO has proposed the Expedited Arbitration Rules (2021) consisting of a set of procedural rules that parties can follow for any arbitration arising out of commercial disputes between parties. A sole arbitrator is nominated by the parties for the appointment. Further, the non-common usage of ADR for technology firms was noticed at an international level when a working group of the United Nations Commission on International Trade Law (UNCITRAL) explored the legal implications of dispute resolution in a digital economy. This is mostly because the tech sector has characteristic claims involving technical and specialized questions and demands a highly flexible mechanism to overcome the innovations of the emerging technology. Further draft provisions for technology-related dispute resolution has defined a technology dispute to mean a “dispute arising out of or relating to supply, procurement, research, development, implementation, licensing, commercialization, distribution, and financing”[2]. The draft had discussed several issues as to why technological disputes have not preferred ADR mechanism by addressing questions of time frame (Draft Provision 4) and case management conferences (Draft Provision 3). In case management conferences, the arbitral tribunal will often discuss procedural questions of how arbitration proceedings will be conducted and technology experts can be decided beforehand. This will ensure that any future ambiguities and further procedural difficulties will not arise at a crucial point of dispute resolution. The proceedings are structured during the case management and handling expert evidence is discussed so as to prevent further complexities from arising in the future. However, the draft rules have not specified whether the provisions and procedural framework are sufficient for the large scope of technology disputes. Proposing a Law and Technology Body Other additional concerns that have not been dealt with are questions of jurisdiction, costs, enforceability and bargaining power of the parties in disputes are also some of the common concerns surrounding technological disputes especially for consumers of such technologies. Engineers and experts from the field of AI and other digital technologies should closely work with dispute resolution centres in the country to render expert advice and provide a qualified technical knowledge upon the subject of fixing liability on the companies, developers and manufacturers. Subsequently, the establishment of a Law and Technology body consisting of various stakeholders including developers, engineers and lawyers could be made possible in various countries to tackle issues relating to emerging technology innovations and legal issues surrounding the same. Dispute resolution professionals can closely work with the body to estimate the most effective dispute resolution mechanism to be deployed while dealing with emerging technology law questions[3]. Conclusion on Law 2.0 and Challenges Ahead AI and its profound impact on society can raise the question of how such an emergent technology should be regulated and the regulatory challenges surrounding it. The rapid pace at which development in AI is heading presents the modern government-enacted system of regulation (Law 2.0) with a series of challenges that the static regulations cannot address. Dispute resolution and cooperation between different government entities and the introduction of new regulatory authorities are very important at this stage. The response time to implement the following changes within the government-enacted regulatory regime would outpace the technological changes made within the field of AI. Therefore, a policy-based approach estimating the soft law implications of the phenomena can be used to counteract a wide range of challenges posed by the legal technology industry. Dispute resolution professionals can rely on the policies and guidelines that are focused on dealing with characteristic issues of privacy, data breaches, confidentiality, and IPR claims. This would ensure that the future of dispute resolution would be expeditious without having to rely on court decisions and precedents[4]. This is significant to mention as rapid changing requirements of tech dispute resolution, rigid systems of lawsuits, and relying on precedents to deal with tech disputes may be futile for an industry concerning AI and technology disputes that has evolving changes. They can be systematically addressed by new and developing institutions that evolve with the changing requirements of technology, innovation, and industry. The unique feature of technology disputes poses a challenging landscape for dispute resolution due to shortened product life cycles and innovations within the field. In the competitive environment of technology companies and services, dispute resolution professionals should be equipped and empowered to deal with the specialized requirements of technology disputes. Significant issues of jurisdiction and short timelines for dispute resolution can lay out an optimistic future for tech dispute resolution. Arrangements at both global and domestic levels should be systematically focused upon for maintaining standardized dispute resolution mechanisms and qualified dispute resolution professionals to handle high-technology disputes. Information sharing about mechanisms of dispute resolution deployed for specific tech disputes should be promoted between countries. Further Readings [1] The Arbitrator and Mediator; (2013) 32(2); ISSN 1446-0548 [2] United Nations Commission on International Trade Law Working Group II (Dispute Settlement). [3] Arbitration Tech Toolbox: Technology- Related Dispute Resolution: Tailored Rules at UNCITRAL; Raoul J. Renard; July 14,2022 [4] How to Improve technical expertise for judges in AI related Litigation- Melissa Whitney; November 7, 2019

This article is co-authored by Poulomi Chatterjee. In a recent article on Law 3.0 and Soft Law, it is explained what Soft Law has been, in conceptual terms, and how does it shape our legal decisions and policy actions. In this article, as a follow up to the concept of Soft Law, we take the example of the policy construct of the Indo-Pacific, to examine the concept as a driver of soft law tendencies, in India and the rest of Asia. The coverage of the concept of Indo-Pacific is widely pan-Asia, since governments across the world including the United States, India, Japan & Australia and regional organisations such as the European Union embrace the importance of this concept. It does have important ramifications in various fields of law, including international law, law & digital technologies, environmental law and corporate governance & ethics. A Quick Recap to Soft Law Soft Law is a concept, mostly seen in the realm of international law, where we see emerging trends of hortatory (or pedagogic) measures, rules, systems, regulations and even norms, whose point of origin is not a system or authority of law (which is usually a top-down authority), but a set of stakeholder entities, institutions, groups and individuals, who have a genuine and legitimate role to play. They might not have the role to become an equal stakeholder to address or even acknowledge a question of law. However, their contributions, interventions and approaches to realities bound by legal systems and frameworks are essential, since they may or may not be put into use by Governments and International Organisations across the world to justify their actions and public policy measures. In many ways, the role of Soft Law is clearly visible in fields like international commercial arbitration, environmental law, international space law and technology law, for starters. Here is an excerpt from the 2018 Draft Conclusions on the Identification of Customary International Law (with Commentaries) produced by the UN International Law Commission, A/73/10, Part 5: Various materials other than primary evidence of alleged instances of practice accepted as law (accompanied by opinio juris) may be consulted in the process of determining the existence and content of rules of customary international law. These commonly include written texts bearing on legal matters, in particular treaties, resolutions of international organizations and intergovernmental conferences, judicial decisions (of both international and national courts), and scholarly works. Such texts may assist in collecting, synthesizing or interpreting practice relevant to the identification of customary international law, and may offer precise formulations to frame and guide an inquiry into its two constituent elements. Part Five seeks to explain the potential significance of these materials, making clear that it is of critical importance to study carefully both the content of such materials and the context within which they were prepared. Another excerpt states the following, from Part 5, i.e., Conclusion 14 states clearly that the teachings of the most highly qualified publicists may serve as subsidiary means: The Commentaries also state two important aspects of development of legal principles and concepts. The first aspect of the development of law, has been described in this excerpt: There is need for caution when drawing upon writings, since their value for determining the existence of a rule of customary international law varies: this is reflected in the words “may serve as”. First, writers sometimes seek not merely to record the state of the law as it is (lex lata) but to advocate its development (lex ferenda). In doing so, they do not always distinguish (or distinguish clearly) between the law as it is and the law as they would like it to be. Second, writings may reflect the national or other individual viewpoints of their authors. Third, they differ greatly in quality. The second aspect on the subsidiary means, especially on the role of publicists has been aptly described: The term “publicists”, which comes from the Statute of the International Court of Justice, covers all those whose writings may elucidate questions of international law. While most such writers will, in the nature of things, be specialists in public international law, others are not excluded. The reference to “the most highly qualified” publicists emphasizes that attention ought to be paid to the writings of those who are eminent in the field. In the final analysis, however, it is the quality of the particular writing that matters rather than the reputation of the author; among the factors to be considered in this regard are the approach adopted by the author to the identification of customary international law and the extent to which his or her text remains loyal to it. The reference to publicists “of the various nations” highlights the importance of having regard, so far as possible, to writings representative of the principal legal systems and regions of the world and in various languages when identifying customary international law. The excerpts clearly give a pathway to governments and international organisations to promote soft law measures in the development of law per se. It thereby makes obvious that one of the most interesting features of soft law is that it can never be a static way of unnerving legal measures. As stated in the article on Law 3.0 and Soft Law, the excerpt provided explains the dynamic nature of Soft Law: It is a phenomenon where the repositories of legal thinking can always learn the best from the policy phenomenon, which are uncertain, unclear and hortatory. Lawmakers and courts can try to make Soft Law rigid, but the nuance always lies in the details. It is impossible to keep up with the rigidity, as Soft Law has to be fungible. Otherwise, the instrumentation which we call as “the” Soft Law, will automatically become a relic or existing part of the Hard Law conundrum, in the form of regulation mechanisms, laws, judgments or any other possible form. The following excerpt from Soft Law in Outer Space [Irmgard Marboe (Ed.)] (2012) may be treated as a reminder to the practitioners of international law, on the dynamic nature of Soft Law: On the other hand, as public international lawyers, we need to be careful not to read too much into such instruments when it is not appropriate. Just like, under the law of treaties, it is not permissible, in the absence of ambiguity in the terms of a particular treaty provision, to ‘read into’ that provision rules to reflect what should be, it is not appropriate to convert in our mind something that is not, and not intended to be such, into a binding rule or obligation. This need for caution sometimes goes against our instincts as academic international lawyers, given that we operate in a field of law where normative rules are distilled from descriptive behaviour, such as in the formulation of customary international law. A diagram from the previous article on Law 3.0 and Soft Law has been provided for reference: The Language of Indo-Pacific and its Relevance The Indo-Pacific region, as we know, is a concept promoted in the field of international relations and Asia studies, where the importance of two ocean regions, Indian Ocean Region and the Pacific Ocean Region is attached to the concept of a rules-based international order. A geographical depiction in From Asia-Pacific to Indo-Pacific: Significance, Implementation and Challenges of the Indo-Pacific region as understood by different countries in Asia has been provided for reference: Now, the concept has earned its value since the early 2000s, when the Former Japanese Prime Minister Shinzo Abe had promoted the concept of a Free and Open Indo-Pacific. We see that in the year 2017, a minilateral grouping known as the Quadrilateral Security Dialogue (also known as the Quad), consisting India, the US, Australia and Japan, is reinstated, and the level of diplomatic engagement has improved from the level of Foreign Secretaries to Foreign Ministers and Heads of States (and Governments). As the conflict in Ukraine unfolds, in February 2022, a Quad Foreign Ministers’ Meeting was conducted in Melbourne. The objectives of the Quad, have been explained by the White House Statement on the grouping: Today, we pledge to respond to the economic and health impacts of COVID-19, combat climate change, and address shared challenges, including in cyber space, critical technologies, counterterrorism, quality infrastructure investment, and humanitarian-assistance and disaster-relief as well as maritime domains. Meanwhile another group of 4 nations have come up to form a minilateral grouping, where the region of focus is West Asia, known as I2U2, with India and the US joined by the United Arab Emirates and Israel. The recent I2U2 Leaders’ Virtual Summit was conducted in July 2022. In the Press Release by the Government of India, the objectives of I2U2 have been provided in brief: ​I2U2 is aimed to encourage joint investments in six mutually identified areas such as water, energy, transportation, space, health, and food security. It intends to mobilize private sector capital and expertise to help modernize the infrastructure, low carbon development pathways for our industries, improve public health, and promote the development of critical emerging and green technologies. Now, there is a political overtone to the concept of the Indo-Pacific, which these 2 important groupings would reflect with time (for example, criticising actions or decisions of other countries). Yet, India as an actor in the Indo-Pacific, with and beyond these groupings, despite its own state interests, has shown to become an international actor with concerns beyond the overtones, which even has been reflective in its international law jurisprudence for years, which has its own limited criticisms. An article on India’s approach to international law has been provided for reading. The importance of the concept of Indo-Pacific, in the field of jurisprudence, and not just international law, lies in the details of the understanding of value systems and policy thinking which this concept promotes in Asia. Earlier, the concept of international law, in the post-Cold War times had the indulgence of the Asia-Pacific understanding, which was oriented around the policy visions and value systems promoted by members of the regional organisation, ASEAN (the Association of South East Asian Nations), Japan, the Republic of Korea and the People’s Republic of China. After 2020, the concept of the Indo-Pacific has become relevant for India, not just for its sovereign interests, but also to facilitate innovation in policy thinking, which directly links to India’s own challenges of developmental economy, sustainable development, legal innovation and many important areas of concern. Areas of security and counter-terrorism also come within the scope of international humanitarian law, and India’s contribution to that jurisprudence, has been impressive. Hence, just because the concept has relevant political overtones, it would be premature to discount the policy groupthink that the Indo-Pacific as a regional construct offers. For example, many significant developments in the field of international law and even policy matters of global concern, have been promoted by international cities. Here is a list of some important conferences, which relate to the information age and how international law has been embraced, starting from diplomatic cooperation to collective and several policy actions: World Summit on the Information Society (Geneva, 2003; Tunis, 2005;) World Conference on International Telecommunications (WCIT-12) (Dubai, 2012) International Conference on Artificial Intelligence and Education, Planning Education in the AI Era: Lead the Leap (Beijing, 2019) World Trade Organisation 12th Ministerial Conference (Geneva, 2022) The significance of international cities is not limited to mere political presence. They act as locations of strategic importance and have an important role in shaping policy impact at governmental and intergovernmental levels. It is therefore necessary to understand the value and purpose of the Indo-Pacific concept in that regard. The language of Indo-Pacific as a regional construct explains how the concept may drive soft law in India’s own legal and regulatory affairs with time: Shaping India’s Knowledge and Information Economics Shaping India as a neutral and reliable forum to promote traditional, modern and diverse means of alternate dispute resolution Shaping newer legal, technological & economic solutions on sustainable development, taking the principle of “common but differentiated responsibility” into due consideration Shaping India as the hub of digital innovation and mobility for governments, researchers and businesses Now, these these aspects of influence may be related to India’s domestic interests, but the impact it could have would be global. India certainly has the potential to shape the regulatory standards pursued by governments and intergovernmental bodies across the globe, which is not limited to the Government of India, and its positions. Thus, the minilateral groupings in their objectives are trying to show what aspects of development and security are they are interested to take up to promote prosperity and global stability. Indo-Pacific Approaches to Shape International Law The formation of several minilateral groupings in the Indo-Pacific region has several implications on the field of International Law, especially in regards to trade. Quoting Mr. Abe’s idea of the Free and Open Indo-Pacific (FOIP), ever since its recognition, the Indo-Pacific region has been looking forward to a rules-based international order, aside from the rule of law, freedom of navigation and overflight, peaceful settlement of disputes, and most importantly, the promotion of free trade. However, all of these terminologies mentioned, are based on the positivist understanding of international law and even domestic laws, in most Asian countries (for example, India). The development of law (lex feranda) at regional and global levels, are not guided merely by the principles and questions of law, but also by those policy understandings that build the foundation of the same. Let us take the examples of China and the United States, whose importance in shaping up the “rules-based international order” after the 1990s has been significant. Lessons from Beijing To quote a recent example stating why the Indo-Pacific as a construct is of essential value, is to assess the scope of China’s Belt and Road Initiative (BRI). BRI is Asia’s biggest supply chain initiative launched by the Chinese Government in order to reap the maximum trade benefits from all across the region. One of the main aims of China through this initiative is to connect the continent of Asia with that of Europe and Africa by way of land as well as maritime networks, to simply improve the regional integration and increase trade between these areas, China benefiting the most from it, while also stimulating tremendous economic growth. Moreover, it is also contended that since the People’s Republic of China is heavily dependent upon the mechanism of trade, it being the largest manufacturing country as well as an exporter of goods of high demand; it is also heavily dependent on the routes provided by the Indian Ocean Region, which translates the purpose of the Belt Road Initiative (BRI) acting in favour of the country. Lessons from Washington DC After the 2000s, the role of the United States in shaping public policy and avenues of governance has shaped drastically. We see that after the 2008 crisis in West Asia and North Africa, the role of the US Government in shaping public policy and self-regulatory approaches to governance, in various countries, has been subject to decline. Now, in the information age, we anticipate the role of various entities, such as FAAMG companies (big technology companies), which even institutions like the European Commission are concerned about. After the UN Security Council-led actions in Libya, the United States Foreign Policy has been subject to actions, which ally their own domestic concerns. Their role in shaping public international law has been already taken over by a huge diversification of European, Chinese, Indian, African and even Latin American scholarships. The United States had pledged to support efforts to combat climate change. However, even after the accession of the Paris Accords, it has not achieved the required commitments. Nevertheless, the US and the EU are supporting climate efforts in India, in cooperation with the Government of India, which surely can shape incremental changes in creating and maintaining regulatory standards in law and environment in Asia, as the United States attempts to create its presence in Asia again. Now, it is important to realise that various state actors, in the history of international law, have shaped the development of law in various domains constantly. For example, the advent of international technology law has to be connected with the development of international telecommunication law and international IP law. Even the USSR and the United States despite many disagreements over the codification of international space law treaties, had invested in the nuances and sophisticated features of the scholarship involving the pertinent legal questions. In general, many documents such as proposals, draft resolutions, communiques, statements and policy prescriptions are legally not binding. They still exist because they are useful in doing 2 things: Tracing out the origins and phases of development of the legal and policy questions for consideration Improving their trajectory of action, omission and review (especially in the case of justifying state practices/an international legal custom, for example) When we look at the Indo-Pacific, we learn from the US and China that their policy visions do represent a dichotomy of visions which remain congruent, hostile or divergent. The trade conflict between the US and Chinese Governments in 2018 also reflects the same phenomenon, which may remind us the ramifications of the Brexit negotiations between the European Union and the United Kingdom on the world economy, since 2017. Another example that could be taken would be the disintegration of the Soviet Union, which had a serious impact on the Russian economy as well as the economies of various non-aligned countries, including India. This can be effectively related to a statement by India’s External Affairs Minister Dr S Jaishankar, whose excerpt is provided as follows: Connectivity, now encompasses data and energy flows not just unhindered movement of goods and people. Data, digitization and technology are redefining and reshaping almost every aspect of business and society. India and ASEAN contribute to the ongoing rebalancing of the global order. We are driven by a rising consumer class, a strong start-up ecosystem, a growing internet economy and a robust demographic dividend. We have also between us the necessary trust and transparency now so central to digital cooperation. The Approaches and their Impact India’s jurisprudential approach to adapt with international legal instruments or norms directly or indirectly, has been tumultuous due to many reasons. Some of the general reasons include the inconsistency of state practices or the judiciary’s inconsistency to settle on some first principles of understanding on issues of general international law. An excerpt from an article published by the Indian Express explains the phenomenon in the case of the Supreme Court of India: Several facets of this judiciary-led transition from dualism to monism require elucidation. First, the apex court incorporating CIL as part of the domestic legal regime is consistent with the practice of other common law countries. However, the sticky part is the ease with which CIL is accepted as part of Indian law. For instance, the Supreme Court’s willingness to readily accept the precautionary principle as part of CIL flies in the face of international law debates where the acceptance of this principle as a customary norm remains contested. Determination of whether a particular provision indeed constitutes a binding customary norm under international law requires the double requirement of state practice (the actual practice of the states) and opinio juris (belief that the custom is part of the law). The apex court rarely conducts such an analysis. Even the recommendations by the Law Commission of India do not stand out. Some tribunals have had this problem of delivering inconsistent judgments, which on principle and purpose, have been unclear. Now, here are some instances where adapting with the concept of the Indo-Pacific as an India-centric platform of innovation in public policy, creates tendencies for incursion of soft law approaches in and through the Indian constitutional and administrative framework: Shaping the role and practical essence of regulators in the fields of data & technology governance, competition law, ESG, international investments, trade and legal reforms Shaping the legal and economic outlook of India’s regulators, judicial system, dispute resolution mechanisms and relevant stakeholders from the private sector, to cooperate between self-regulated practices and regulatory compliances Globalising the experience of constraints and mobility in creating policy impact and then shaping the legal approaches to solving the problems related to the same In further articles, the role of soft law in other relevant international law fields, such as of outer space, technology, IP, environment and others could be discussed.

In this article, I have discussed the idea of a Pseudonymous Economy in the digital world, and its role in affecting human digital privacy. The idea is ever-evolving, and it would become intriguing to estimate its scope and reach. The concept of a Pseudonymous Economy was first coined by the angel investor and entrepreneur Balaji Srinivasan. In his own words, he defined the Pseudonymous Economy as the following in an article for The Hub: Visual Legal Analytica is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. Subscribed “The Pseudonymous Economy is the foundation for muscular classical liberalism that is capable of standing up in today’s information environment. Rather than make naive appeals to people to look past gender or race, or to not cancel or to not discriminate online, instead we make it impossible to do that by taking away that information entirely with realistic avatars and fully functional pseudonyms.” Thus, the Pseudonymous Economy builds the foundation of an ideal world, wherein it becomes impossible to discriminate against an individual’s identity, be it any, or any other factor that may be used to discriminate amongst individuals, due to the existence of pseudonyms and avatars that people may use to interact with each other without being face to face and keeping a segment of their identity private to their own selves. In a legal sense, the Pseudonymous Economy brings another layer of personal privacy to an individual’s enjoyment of life. Thus, as the Right to Privacy was recognized as a fundamental right under Article 21 of the Constitution of India of 1949, it could be a fore coming case wherein the Right to Pseudonymity could be recognised from an operative angle. Photo by 8machine _ on Unsplash Some Thoughts on the Indian Case of Privacy Right(s) Privacy has been a continuously evolving concept, which has started to overlap uncomfortably between several facets of human lives, but mainly in regards to identity and autonomy. Hence, the two terms have been quite scrutinised, quite closely by learned scholars in order to construct definitive understandings around the idea of ‘privacy’ amongst identity and autonomy, let us separate the term ‘privacy’ into various broad categories, especially information privacy, and decisional privacy. Information Privacy refers to an individual’s autonomous right to control the ability of strangers on the Internet to disseminate, gain, or use such information about themselves. In furtherance to this, Decisional Privacy, on the other hand, refers to the right to make decisions regarding family, intimate relations, and other private affairs. It is interestingly observed that the current Indian jurisprudence has only been able to recognise ‘Decisional Privacy’ as a fundamental right. The Right to Information Privacy might just be coming around. The Concept and its Dimensions Balaji, under the concept of a Pseudonymous Economy, creates a vast distinction between three terms - pseudonymity, anonymity, and reality. He went on to state the following: 1. The Pseudonym is used on sites like Reddit and Twitter 2. The Anonym is used on sites like 4chan that are designed to be anonymous 3. The Real name is used on platforms like Facebook As he went ahead to state the essential characteristics that a Pseudonymous Economy possesses, it became clear that such a concept has lively reflections worldwide. His contribution, interestingly, has paved way to refine the construct which has emerged as a phenomenon in the cyberspace. With this, he elaborates the following: 1. The phenomenon/concept is already mainstream, i.e., the basic idea is already pervasive both online (usernames) and offline (nicknames and changed names) 2. It is where the society is heading towards 3. It is not anonymity 4. It is essential to decentralization 5. It is a continuum, having degrees of pseudonymity This can be understood by seeing and observing threads and comments on microblogging and ecosystem platforms, where it becomes apparent that (for example, Twitter and Instagram), where people quarrel on trivial issues. Even if the issue is contentious, they are increasingly, due to the reach they need to converse, or the mental effect of the discourse on the platforms, or any other reasons as may persist, being reactionary in engagements. Even on LinkedIn we see similar trends, where hyped or polarised content triumphs over nuanced takes on professional, personal and business affairs. Start-ups and even some blockchain platforms, also for example are subjected to banter and ranting, via coordinated marketing campaigns, which is nothing new in the business world. The new thing which is observant is the sophisticated tendency and dissimulation of the algorithms, which drive such discourse. Yet, human bias and algorithmic bias, have to be always taken into proportionate consideration. Freedom After Speech? As a solution to the whole scenario, Balaji Srinivasan’s conception of a Pseudonymous Economy in the digital world could remain (and even become) escalating into the state of human anonymity or pseudonymity as the baseline to promote protected communication, engagement and discourse in and via digital platforms. To be more specific, a Pseudonymous Economy grants one the right of ‘Freedom After Speech.’ This means that a real person who is casually operating under a pseudonym can feel free to share their own opinions without having any apprehension of fear to his/her reputation, in regards to their real identity. In a similar way, the social media “groups” will not be able to trace such person back and threaten the safety of the individual who is using a part of technology belong to a Pseudonymous Economy. Let us remind ourselves of the proposition kept by Prof. Daniel Solvoe in his book, ‘The Digital Person,’ in which he summarises various kinds of methods that are being used to collect personal information online and how it puts the targeted individual at risk. Thus, it is safe to say that when a person operates under a pseudonym, the person is partially safe from being identified and tracked down, which reduces the chances of online stalking and retrieving confidential information that is private to you. However, when one operates while giving disclosure to their real name (original identity), it becomes easy to identify as well as tracking the person down. An example of this may be through the use of LinkedIn, the networking platform which uses real names, rather than pseudonyms. Additionally, it must also be mentioned that such techniques for pushing back against these invasive actions by way of a Pseudonymous Economy, i.e., another type of technique for ensuring electronic anonymity may be seen as direct responses to institutional digital surveillance, as was also noted by, Diana Saco, the author of Cybering Democracy. An example of this type of pseudonymity may be Satoshi Nakamoto or Corpse Husband, whom we know are real personalities, but behind pseudonyms who consistently maintain a certain kind of anonymity, along with reputation. This is because although a real person may be operating under a username in Twitter or Instagram, but the same usernames also hold reputation if being used for a prolonged period of time. Understanding the Administrative and Regulatory Dilemmas However, an essential factor of concern that has been missed in the instant mix of scenarios is the regulation of pseudonymity in case users become reactionary in groups or severally. The world is not unknown to the effect of issues-based laws not codified and regulations not developed anyways. Nevertheless, it is appropriate that even those settled norms, laws, regulations and principles, which exist in a realtime scenario, must be treated in a clinical fashion to generate better jurisprudence via courts, or via parliamentary committee briefings, to see how various stakeholders address and approach emerging legal questions. Considering Prof. Roger Brownsword’s book Law 3.0, and his views on a regulatory in the information age, it is obvious to discern that no institution (public, private) is a monolith. Still, let us assume that we should try achieving a Pseudonymous Economy via a set of laws and regulations, generating the Degrees of Pseudonymity would become the first obvious dilemma. Under this concept, it is understood that an individual cannot attain “air-tight” protection in favour of their real personality. Thus, the individual can attain some pseudonymity in some proportions, in certain dimensions of reference points (financial, governmental, economic, business, academic, etc.,) as well as in the avatars formed under a Pseudonymous Economy. This could help governments we can then track the actual person who may be responsible for the interventions. To understand this better, we must also look at the concept of the 33 Bits, which reportedly assists you in measuring the degree of pseudonymity. There are approximately seven and a half billion people on the planet, and two to the 33rd power is approximately eight billion. So, with just 33 bits of information, you can completely de-anonymize someone and track them down. In the same context, if you have ten bits of information about someone, they are inside a set of two to the tenth, or approximately a thousand people. Similarly, if you have 20 bits, that is approximately two to the twentieth – or approximately a million people. This example in some way shows that pseudonymity exists on a mere scale inside the 33 Bit range. Such Degrees of Pseudonymity, however, remain to be a varying choice to persons known to the Pseudonymous Economy. This means that there exists no concrete form of law in regards to the appropriate Degrees of Pseudonymity and the safety factor while operating under a Pseudonymous Economy. Additionally, however, as the Pseudonymous Economy is slowly legitimized after discussions like such and constant endeavours to address such challenges, it will have to be advocated properly by introducing laws which recognise some kind of safety measures. It could however, be related with the phenomenon of Soft Law (Law 3.0) as well. Maybe, we should ponder upon the questions as to how we understand human digital privacy in parallelism to human digital privity. Further Readings Diana Saco, Cybering Democracy: Public Space and the Internet 119 (University of Minnesota Press, Minnesota, 2002) Daniel J. Solvoe, The Digital Person: Technology and Privacy in the Information Age 23 (New York University Press, New York, 2006). Ken D. Kumayama, “A Right to Pseudonymity” 51 Arizona Law Review 427 (2009).