Competition Bureau to Increase Scrutiny of Data-Driven Businesses

In a May 25, 2016 speech given at the offices of McCarthy Tetrault, the Commissioner of Competitor John Pecman signalled that the Competition Bureau will be heightening its scrutiny of data-driven businesses, particularly those using Big Data techniques analytics.

While supporting “ the emergence of innovative business models in the digital economy”, Pecman noted that the increased role of data in business and the larger marketplace meant that anticompetitive practices could impede new entrants

Referencing the Bureaus’ investigation into allegations of anticompetitive conduct on the part of Google in relation to its online search, search advertising and display advertising services, Pecman specifically focused on Big Data as an area of concern for the Bureau:

While that investigation has concluded, the Bureau recognizes that datadriven companies play an important and growing role in Canada’s economy. The emergence of “Big Data” and its effects on competition is also a prevalent concern on the international stage. As the OECD Competition Committee recently observed, some are referring to data as the “new oil”, or the currency of the digital economy. On May 10th, the German and French competition authorities released a joint study on “Competition Law and Data” to further feed the debate on assessing data as a factor to establishing market power.

As the collection, analysis, and use of data is increasingly becoming an important source of competitive advantage, driving innovation and product improvement, the Bureau will continue to actively monitor developments in this area.

Pecman also referenced the  recent ruling from the Competition Tribunal against the Toronto Real Estate Board (TREB). The Tribunal supported the Bureau’s view and ruled that the restrictions TREB imposes on its members’ use and display of the data in the Toronto Multiple Listing Service system are anticompetitive, and found them to have had “a considerable adverse impact on innovation, quality, and the range of residential real estate brokerage services” available in the Greater Toronto Area.

Most recently, the Competition Bureau announced that it was launching a FinTech market study (see our previous post here), focusing on innovations that impact how consumers and small and mediumsized businesses interact with financial services and products such as peertopeer banking, mobile wallets and payments, crowdfunding, and onlinebased financial advisory services (or "roboadvisors").

For more information about our  Firm’s Technology expertise, please see our Technology group page.

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