CELS guest research webinar: dr Inge Graef (Tilburg University) 'Consumer sovereignty and competition law: from personalization to diversity'

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