Law Times

Page 8 September 18, 2017 • Law timeS www.lawtimesnews.com Can Competition Act address Big Data cases? BY DALE SMITH For Law Times T he Competition Bureau has made it a priority to put out a white paper this year about issues related to Big Data from a com- petition perspective. Some lawyers wonder, how- ever, if the Competition Act is well equipped to deal with those issues as they become more prominent, given the increasing role that data plays with business and the dearth of case law inter- preting the act. "As data becomes more valu- able and more useful . . . it's be- coming an important competi- tive asset, at least in some busi- nesses," says James Musgrove, co-chairman of the competition and anti-trust practice at Mc- Millan LLP in Toronto. "If you have a merger with firms, and they both have key data sets in a particular area, that may make the merger anti- competitive. The way I try and think about these things is look- ing at it like any other asset and looking at the anti-trust impli- cations of it." Musgrove says he is less con- cerned if data goes from one company to another, but he is more concerned if two unique or particular sets of data were part of a merger deal. "You can't play them off against each other or try to com- pete with them about that," he says. The Competition Tribunal has dealt with abuse of domi- nance related to data before, in an April 1995 decision in Canada (Director of Investi- gation and Research) v. D & B Companies of Canada Ltd., 1995 CanLII 8 (CT), commonly referred to as the Nielsen deci- sion. There, the tribunal found that Nielsen had controlled the supply of scanner-based market- tracking services throughout Canada by entering into exclu- sive contracts with retailers, and it ordered Nielsen to stop enforc- ing those exclusive contracts. "They were ordered to share some of their historic data with [competitor] IRI so that they could offer a bit of a competitive product in terms of historic in- formation," says Musgrove. "Notwithstanding the order, nothing happened because the retailers were not obliged to be exclusive anymore, but they sim- ply chose to stay because they were apparently quite happy with the arrangement, whether it was de jure exclusive or just de facto." A more recent case was the 2016 decision by the Tribunal in The Commissioner of Com- petition v. The Toronto Real Estate Board, 2016 Comp. Trib. 7, where the tribunal found that the Toronto Real Estate Board was inappropriately restricting the use of its listing data, and or- dered that it be made available to other internet-based brokerages and other competitors. "That case concerned data feeds for a particular kind of website offering — it's got to do with certain items of informa- tion," says Michael Osborne, partner with Aff leck Greene McMurtry LLP in Toronto. While Osborne's firm acted for TREB at the tribunal, he was not on the file. Osborne says in the Toronto Real Estate Board decision, there is "countervailing policy argument that says this isn't one firm's data" but rather that it is the aggregation of data from across the industry. "It's intrinsically a shared re- source," says Osborne. He says that lawyers should consider the decision with an "essential facilities matrix," which is a difficult test to show that a monopoly can be justified if the facility cannot be practi- cally or reasonably duplicated by a competitor. Osborne adds that the decision also involves legal issues around copyright. "In TREB, the tribunal re- jected the notion that the data- base is copyrighted," he says. The TREB decision is being appealed to the Federal Court of Appeal. Osborne says that, 20 years ago with Nielsen, the issue was an exclusive relationship to collect the data, whereas the TREB decision deals with who can use that data and who can have access to it. The fact that the bureau re- cently dropped an investigation of Google regarding abuse of dominance — a practice where a major market player uses its position to exclude other players — saying that it concluded that such an action could not pro- ceed may be a factor in why it has decided to issue a white paper on Big Data. "They refer to it in one of their papers as it being the next form of oil commodity, and it is for sure looking to the future as to whether or not it needs additional powers to deal with that situation in the future," says Jean-Marc Leclerc, partner with Sotos LLP in Toronto. Leclerc says the investiga- tion by the bureau into Google's dominant position and the TREB decision shows that the federal bureau, and lawyers who practise competition law, are looking at new areas where the Competition Act may be appli- cable. In the context of modern online social media platforms, Leclerc says, competition issues that arise out of one company's monopoly over information doesn't mean it can't be targeted under the Competition Act. "Clearly, it's an evolving busi- ness scenario as to the impor- tance of personal information that people have about them- selves on the internet, and regula- tors are looking for ways in which to manage anti-competitive situations around managing that information in the future," says Leclerc. He says that, on the whole, the existing legislative tools are probably up to the job. "What we do need to do is re- fine our thinking on these issues — how do we apply competition laws to the knowledge economy, to data, to algorithms, to online businesses the way business is done today." LT FOCUS ON Competition Law Michael Osborne says a recent Competition Tribunal ruling involv- ing the Toronto Real Estate Board rejected the idea that its database is copyrighted. FOCUS This is more than a phone book. 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