大數據之競爭法議題──以限制競爭為中心

Big Data and Competition Law: Focusing on Restraints of Competition

數位經濟市場能否健全發展取決於事業間對大數據之自由與公 平競爭。鑑於大數據之蒐集與使用所生限制競爭問題日益嚴重，對 其所衍生競爭法議題之研究刻不容緩。研究結果認為大數據兼含促 進競爭與抑制競爭之效果，在資料蒐集、儲存與使用上皆可能形成 市場進入障礙。數據巨擘可能具有市場力量與獨占地位，也確已有 濫用獨占地位之實例。兩家握有巨量數據之公司倘共同決定大數據 之蒐集手段、使用方式、或交易模式，進而影響相關市場之競爭秩 序，可能構成聯合行為。當兩家事業結合後之市占率超過法定比例 時，因競爭程度下降可能會有限制競爭之虞。本文於學理上提出大 數據於限制競爭議題之理論架構，於實務上可供公平交易委員會與 法院於個案審理時之參考。

The sound development of digital economy relies on the free and fair competition of big data in the industries. In view of the increasingly serious problems of restricting competition arising from the collection and use of big data in the data-driven market, researches on the issues of competition law derived from big data are necessary and urgent. This article aims to discuss the topic of restraints of competition in big data, including whether big data can promote or inhibit competition, whether they may form a barrier to market entry, whether they may have market power and dominant position, whether the collection and use of big data may constitute an abuse of dominant position or concerted action, and whether the merger of big data companies may have anti-competitive effects. The results of the study suggest that big data contain both the effects of promoting and constraining competition, and may form barriers to market entry in the collection, storage, and use of data. The data giants may have market power and monopolistic position in the relevant markets, and there have indeed been instances of abuse of monopolistic position. If two or more companies with huge amounts of data jointly decide on the means of collection, use, or transaction mode of big data through contracts or agreements, which in turn affect the competition order in the relevant market, it may indeed constitute a concerted action and thus have an anti-competitive effect. However, if their agreements have only few impacts on the market competition order, or even beneficial to the overall economic or public interest— such as standardizing data formats or improving the efficiency of machine learning—they may have the opportunity to meet the allowance requirements of the Fair Trade Act. When the market share after the merger of two companies exceeds the legal constraint, there may be a risk of restricting competition due to the decline in competition. The United States and the European Union approved three mergers and acquisitions on the grounds that they would not restrict competition. This article disagrees those decisions and finds that the participation and counterbalancing of the competitors and the risk of reidentification of personal data should be further considered. In theory, this article puts forward the theoretical framework of big data in the issues of restraints of competition. In practice, it can be an important reference for the Fair Trade Commission and the courts in case adjudications.