UK Moves to Reconcile Antitrust and Data Protection Enforcement in Digital Sectors

Last year, to address the increasing overlaps between data protection and antitrust enforcement, the UK launched the Digital Regulatory Cooperation Forum (DRCF). The DRCF brings together the four UK regulators most involved in digital matters (i.e., the Competition and Markets Authority (CMA), the Information Commissioner’s Office (ICO), the Office of Communications (Ofcom) and the Financial Conduct Authority (FCA)). Its main objective is to enable coherent and informed regulation of the UK digital economy.

DRCF’s Recommendations

Earlier this month, at the request of the UK’s Government, the DRCF published a series of recommendations to improve cooperation between the DRCF members. These include recommendations on:

1. information sharing – given that all four regulators are subject to similar procedures for handling confidential information, the DRCF is of the view that they should be able to easily and quickly share such information between them when necessary to effectively exercise their powers in the digital sector; and
2. regulatory coherence and cooperation – in order to ensure coherent regulatory outcomes, the DRCF recommends that the four regulators should look beyond their own duties and consider the wider regulatory ecosystem (including the objectives of their fellow regulators). To that end, the DRCF suggests solutions which range from a formal duty to consult to more general duties of co-operation (which would allow, but not require, each regulator to take others’ views into account).

Joint statement by ICO and CMA

Following the DRCF’s recommendations, on 19 May, the CMA and the ICO issued a further joint statement setting out their views on the relationship between antitrust and data protection in digital regulatory matters. In particular, in line with the DRCF’s recommendations, the joint statement emphasized the importance of coherent outcomes, i.e., data-related antitrust regulation should be in line with data protection regulation and vice-versa.

There have been tensions and overlaps between data protection and antitrust enforcement for several years, and much debate on how their sometimes competing demands can be reconciled. For example, this was a key question in a case recently referred to, and awaiting preliminary judgment from, the EU’s highest court. The DRCF’s recommendations, and the joint statement by the ICO and CMA, are notable as they represent one of the first known examples of regulatory bodies themselves committing to cooperate and to seek to align on outcomes where necessary.

What’s next?

The DRCF is working with the UK Government on necessary next steps and the implementation plan. In the meantime, DRCF is encouraging comments and discussions on its plan of work and priorities for the year ahead.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.